Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 1 of 57 PageID #: 34864
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453-RGA
`16-454-RGA
`16-455-RGA
`
`)
`ACCELERATION BAY LLC,
`)
`A Delaware Limited
`Liability Corporation, )
`)
`Plaintiff,
`)
`)
`)
`)
`)
`)
`
`v.
`ACTIVISION BLIZZARD,
`INC., a Delaware
`Corporation,
`Defendant.
`
`))
`
`)
`
`Friday, June 16, 2017
`3:30 p.m.
`
`BEFORE:
`
`SPECIAL MASTER ALLEN M. TERRELL, JR.
`
`APPEARANCES:
`
`POTTER, ANDERSON & CORROON, LLP
`BY:
`PHILLIP A. ROVNER, ESQ.
`-and-
`KRAMER, LEVIN, NAFTALIS & FRANKEL, LLP
`BY:
`AARON FRANKEL, ESQ.
`Counsel for the Plaintiff
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453-RGA
`16-454-RGA
`16-455-RGA
`
`)
`ACCELERATION BAY LLC,
`)
`A Delaware Limited
`Liability Corporation, )
`)
`Plaintiff,
`)
`)
`)
`)
`)
`)
`
`v.
`ACTIVISION BLIZZARD,
`INC., a Delaware
`Corporation,
`Defendant.
`
`))
`
`)
`
`Friday, June 16, 2017
`3:30 p.m.
`
`BEFORE:
`
`SPECIAL MASTER ALLEN M. TERRELL, JR.
`
`APPEARANCES:
`
`POTTER, ANDERSON & CORROON, LLP
`BY:
`PHILLIP A. ROVNER, ESQ.
`-and-
`KRAMER, LEVIN, NAFTALIS & FRANKEL, LLP
`BY:
`AARON FRANKEL, ESQ.
`Counsel for the Plaintiff
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 2 of 57 PageID #: 34865
`2
`
`APPEARANCES CONTINUED:
`
`WINSTON & STRAWN, LLP
`BY:
`KATHLEEN B. BARRY, ESQ.
`BY:
`MICHAEL A. TOMASULO, ESQ.
`Counsel for the Defendant
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 3 of 57 PageID #: 34866
`3
`
`Kathleen Barry with
`MS. BARRY:
`Winston & Strawn for Defendants.
`MR. TOMASULO:
`Also on the line
`and with Kathleen is Mike Tomasulo.
`Good
`afternoon, Special Master.
`Good afternoon.
`SPECIAL MASTER:
`MR. ROVNER:
`Special Master, it's
`Phil Rovner from Potter Anderson.
`And I guess
`who else is on the line for Acceleration Bay?
`MR. FRANKEL:
`Aaron Frankel.
`SPECIAL MASTER:
`Well, good
`I gather that is probably the group
`afternoon.
`for today's hearing.
`Are we waiting for anybody
`else?
`
`Not from our side.
`MR. ROVNER:
`SPECIAL MASTER:
`Thank you for
`accommodating my schedule to start a little
`Why
`later this afternoon.
`I appreciate that.
`don't I, for the record, indicate this is an
`action, civil action number 454, 455 and if I'm
`not mistaken, it's not in civil action 453; is
`that correct?
`
`Well, Acceleration
`MR. ROVNER:
`Bay has a motion to applies to all the
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 4 of 57 PageID #: 34867
`4
`
`Defendants.
`
`Let
`All right.
`SPECIAL MASTER:
`Let me, for the sake of the record
`me do this.
`and when I issue an order, it will be in all
`three actions.
`Civil action numbers 16-453,
`454, 455.
`There have been several motions filed
`on June 7th.
`There have been responsive briefs
`and as I've indicated to the parties, I've read
`them and I'm prepared to proceed.
`I think the
`most efficient way would be to hear from the
`moving party who would particularly focus
`comments on the response made by opposition to
`the motion.
`If there's any Plaintiff, would you
`like to proceed first with the first of your two
`motions?
`
`I'm prepared to do
`
`MR. FRANKEL:
`so, Special Master.
`Go ahead, then.
`SPECIAL MASTER:
`MR. FRANKEL:
`Thank you.
`Aaron
`Frankel on behalf of Acceleration Bay.
`Special
`master, I'll start with the motion to compel
`discovery as to the updated versions of the
`accused products and I won't rehash what's in
`our moving papers other than to say that this is
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 5 of 57 PageID #: 34868
`5
`
`a routine process in patent cases, over the
`passage of time often new versions of the
`accused products are released and it makes sense
`to include them in the case, otherwise the
`parties would need to engage in a series of
`lawsuits to resolve their dispute.
`Now, so I'll turn to the arguments
`that Defendants raised in opposition.
`We've
`been up front since the start of the case that
`it was our understanding that these products
`were in the case.
`We served an identification
`of accused products on February 13th.
`The Court
`did not rule that these products would not be
`the subject of discovery referring any disputes
`instead to the Special Master.
`And the
`suggestion that this is something that we've
`sandbagged or stalled to the detriment of
`Defendants is just not supported by the record.
`If you look at Exhibit 5, which is the
`correspondence on this issue, the first time the
`Defendants definitively say that they're not
`going to provide discovery on these products is
`May 2nd.
`That's the e-mail at the top of the
`chain.
`But if you flip back through the
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 6 of 57 PageID #: 34869
`6
`
`exhibit, you'll see that the discussion about
`the production of financial discovery goes all
`the way back into March.
`And suffice it to say
`that those discussions were dragged out.
`When
`we got the definitive position from Defendants
`that they weren't going to provide this
`discovery, we very quickly responded and asked
`for a meet and confer and proceeded to file a
`motion to compel.
`And at that point there were
`just a few days short of three months left in
`discovery.
`So there was plenty of time to get
`everything done then.
`There's still time for
`that discovery now.
`Again, that communication
`was May 2nd and by May 22nd we had exhausted the
`meet and confers, took some time to schedule a
`meet and confer with Defendants and that's the
`date, that May 22nd is when we requested a
`hearing with the Special Master to seek relief
`on this issue.
`And at that point there were
`still two and a half months left of discovery.
`So it's really not fair for Defendants, having
`dragged it out this long, to say there's only 45
`days left in discovery and it's not enough time
`to complete the discovery.
`We tried to get this
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 7 of 57 PageID #: 34870
`7
`
`discovery going back much further than that.
`And to say that this is some
`tactic that's to the detriment of Defendants, it
`just doesn't make any sense.
`It's our burden to
`prove infringement and to prove damages.
`And
`the shorter period of time for discovery, the
`more prejudicial it is to Plaintiff.
`I don't
`understand how there's any prejudice to
`Defendants here.
`They're obviously very well
`familiar with how their products work and their
`own financial evidence.
`And in any event,
`they're providing responsive expert reports on
`these issues which aren't going to be due for
`months.
`
`Finally, the suggestion that
`there's some extreme burden here because of
`changes in the products seems greatly
`exaggerated.
`In their briefing they don't
`address the NBA 2K product at all.
`They seem to
`admit to the functionality in the Blizzard
`downloader is the same.
`As far as the Call of
`Duty games, their contention is that these new
`versions have updated graphics and sound, but
`that's not an issue in this case.
`This case is
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 8 of 57 PageID #: 34871
`8
`And they're
`about the networking functionality.
`not saying that there's anything different about
`that networking functionality.
`To the contrary,
`I have deposition testimony for Call of Duty and
`most of these other games that the networking
`functionality is the same or substantially the
`same.
`
`The same thing for the NHL game.
`The exhibits they submitted just talk about
`changes in the graphical presentation.
`For FIFA
`they have some -- their exhibits show some
`improvements in the graphics, you know, that the
`stadiums look better and the players faces look
`better.
`Again, that's not really relevant to
`the functionality that's at issue here.
`So in short we think it's a
`routine practice to provide discovery on updated
`products.
`We've asked -- we timely sought this
`discovery.
`We don't see any special burden here
`and so we think the discovery should proceed on
`those products.
`Are there any questions that I
`can answer?
`
`So your position
`SPECIAL MASTER:
`is that, that their argument said these updated
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 9 of 57 PageID #: 34872
`9
`
`versions are significantly different from the
`versions that are subject to your initial
`lawsuit.
`You say it's just simply not true and
`is not a basis to deny discovery.
`Is that
`right?
`
`That's correct.
`MR. FRANKEL:
`It's not true in relevant part.
`So in other
`words, the fact that the slightest depiction of
`the players has a higher resolution for the
`soccer game, that's not relevant to this case.
`And they only mention one technical feature for
`one game, which is the soccer game, to say that
`there's a new Frostbite engine that's being
`used.
`And there's nothing relevant for any of
`the other games at issue.
`And the other
`SPECIAL MASTER:
`thing is going back to your Exhibit 5 and the
`first, I guess, e-mail that you point to is
`March 6th and you say that shows a chain related
`to your request for these updated versions.
`When I read that e-mail, it wasn't clear to me
`that it did relate to updated versions.
`It
`refers to discovery issues on damages.
`Can you
`import how this covers updated versions?
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 10 of 57 PageID #: 34873
`10
`
`Well, this is a
`MR. FRANKEL:
`discussion among many damages issues, including
`updated financials to cover the sales from May
`2016 when some of these products were released
`and into 2017.
`So you know, we've been asking
`the witnesses at depositions about these
`products.
`We've been asking for the updated
`financial information, which includes the 2017
`versions, going back to March, and we didn't get
`a definitive answer on it until May 2nd.
`SPECIAL MASTER:
`Yeah, but now --
`you certainly in these e-mails don't seem to be
`referring to things like the source code for the
`updated versions, do you?
`That's correct,
`MR. FRANKEL:
`Special Master.
`This is one string of
`communication between the parties that's
`relating to financial discovery.
`SPECIAL MASTER:
`All right.
`Anything further?
`I'll let Ms. Barry address
`your points and then I'll give you time if you
`like to respond to anything she says.
`MR. FRANKEL:
`Thank you.
`SPECIAL MASTER:
`Ms. Barry.
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 11 of 57 PageID #: 34874
`11
`
`Thank you, Special
`MS. BARRY:
`I'll start with the first thing, which
`Master.
`is the damages discussion, which as you can see
`from the e-mails I was personally a part of.
`And my recollection of the original conversation
`with Mr. Frankel's colleague, Hannah Lee, on
`February 23rd, was I told her at the time that
`no, we would not be producing sales information
`on these allegedly new products and that that
`was an issue for us and we were not going to be
`providing discovery on them.
`And then we had
`this long chain of e-mails that you see, Special
`Master, that says that we were providing updated
`information about other issues.
`And as you can
`see from the e-mails, Plaintiff requested very
`detailed and very specific types of financial
`information, which I can tell you was extremely
`burdensome for all of our clients to get and
`took me quite a lot of time to work with the
`clients to actually get in the format that they
`wanted.
`This was not in any way, shape or form
`our clients dragging their feet or anything of
`the sort.
`It was we had very detailed specific
`requests from the Plaintiff that required us to
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 12 of 57 PageID #: 34875
`12
`
`get financial information in a format that is
`not as it is kept in the ordinary course of the
`business.
`
`And
`Apologies.
`SPECIAL MASTER:
`for the sake of the court reporter, I guess when
`I'm interrupting counsel, you know it's the
`Special Master.
`Ms. Barry, I was wondering, but
`on these financial data that you're providing or
`not providing, was it your understanding that
`this covered updated versions?
`That's exactly my
`MS. BARRY:
`No.
`point, Special Master.
`When I first spoke to
`Mr. Frankel's colleague on February 23rd, I said
`we are not going to be producing financial
`information on the, quote, newly accused
`identified products, that we are only doing the
`products that were in the complaint that had
`been filed back in June of 2016.
`SPECIAL MASTER:
`Is there any
`document to support your recollection on that?
`MS. BARRY:
`I don't recall.
`I
`don't -- I haven't specifically looked for one,
`because --
`
`SPECIAL MASTER:
`
`Yet, on the other
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 13 of 57 PageID #: 34876
`13
`
`hand, there isn't a specific document in the
`chain of e-mails referred to in Exhibit 5 that
`expressly relates to or identifies updated
`versions; is that correct?
`I have not -- I
`MS. BARRY:
`Yeah.
`have not studied back through these, so I don't
`believe it -- I'm not sure that there's anything
`specific in here and I'm not sure there's
`anything specific in the extended
`correspondence, so I can't point you to anything
`at this point.
`All right.
`SPECIAL MASTER:
`MS. BARRY:
`But that was my
`recollection and it's entirely consistent with
`what our overall position was at the time, which
`was we were very clear that our position was we
`were not considering those newly identified
`products.
`And you know, we disagree with
`Plaintiff's characterization of them as new
`versions, right.
`But we did not consider them
`part of the case.
`We objected to including them
`as part of the case.
`We did that before Judge
`Andrews earlier.
`So for me to have taken that
`position to say that we were going to provide
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 14 of 57 PageID #: 34877
`14
`them would have been a 180 degree change, which
`would have required me to get approval from my
`client.
`So that's not how I recall it
`happening, but --
`Ms. Barry, thank
`SPECIAL MASTER:
`Why don't you turn
`you for covering that point.
`next to Mr. Frankel's argument that there really
`isn't any particular prejudice to you that you
`have this information, can get them well within
`the time period before discovery cut off.
`I
`think that's a summary of his argument.
`You
`want to address that?
`I appreciate
`Yes.
`MS. BARRY:
`that opportunity, Special Master.
`So, as you
`can tell, just on the financials and, you know,
`Plaintiff is asking for more than just updated
`financials here.
`They're asking for updated
`marketing.
`They're asking for updated source
`code.
`They're asking for updated a lot of
`things.
`But literally it did take us the
`extensive amount of time you see reflected in
`these e-mails to get this financial information
`from our clients because -- in part because
`Plaintiff is asking for it in such a detailed
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`1 2 3 4 5 6 7 8 9
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 15 of 57 PageID #: 34878
`15
`I mean, Plaintiff asked for
`and particular way.
`not only gross revenue -- not only net revenue,
`but gross revenue and they asked for a
`particular break out, and a number of different
`things, which are not how the clients
`necessarily ordinarily keep the financials,
`right.
`They asked for billings and, you know,
`we just got 30(b)(6) notices from Plaintiffs
`about billings again yesterday.
`And as we told
`them, we don't have billings, right, but yet we
`had to go and do extensive work to try and
`figure all this stuff out.
`And to go do it
`again and to do it for more products, it's going
`to take time.
`And I just don't see how it
`happens in the short amount of time that we have
`here.
`And to make our clients do that,
`especially when we're talking about the summer
`holidays and I know that there are various
`quarterly deadlines coming up, it's just not --
`it's not fair and it is highly burdensome and
`highly prejudicial.
`But if I can turn to
`another point --
`MR. TOMASULO:
`SPECIAL MASTER:
`
`Special Master --
`Thank you.
`Just
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 16 of 57 PageID #: 34879
`16
`
`Write down
`Let Ms. Barry finish.
`a second.
`Don't forget.
`We'll give you an
`your notes.
`opportunity --
`MR. TOMASULO:
`colleague, Mike Tomasulo.
`Oh, I'm sorry.
`SPECIAL MASTER:
`thought it was the -- I apologize.
`That's the
`only difficulty of doing the telephonic
`hearings.
`
`This is her
`
`I
`
`I know that Mr.
`MR. TOMASULO:
`Frankel, I don't think he's ever interrupted us
`in one hearing.
`But I was just going to add
`something to what Kathleen said with her
`permission.
`
`Please.
`MS. BARRY:
`SPECIAL MASTER:
`Go ahead.
`MR. TOMASULO:
`Just from the
`perspective of you being another viewpoint on
`this, one, there's the issue of timing.
`I was
`at the hearing with the judge and I think we
`made it very clear that we did not believe that
`the case should include the 2017 accused
`products that had been at that time identified
`and we addressed that issue with the judge.
`So
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 17 of 57 PageID #: 34880
`17
`
`from a timing standpoint, I don't think there
`was any ambiguity in our position as of
`I wrote
`certainly not later than the hearing.
`the order that I sent over to Mr. Frankel's team
`on around January 27th and we said no more
`products in that order.
`Again, I don't think
`there was any ambiguity in what our position
`was.
`
`But as to the games, the idea that
`they're updated versions is really consistent
`with just how the game is made.
`A game like
`Call of Duty, for instance, there are three
`separate studios.
`These games are like a movie.
`They have probably a bigger budget than most
`movies.
`There are hundreds of people involved
`in them.
`An average budget for a game like Call
`of Duty is about $300 million dollars and it
`The
`involves hundreds of people working on it.
`game -- for Call of Duty there's three separate
`studios, which is akin to a movie studio in the
`sense that there are just -- you know, there are
`different companies, different legal entities
`within Activision.
`There are three of them.
`And they each make one Call of Duty game every
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 18 of 57 PageID #: 34881
`18
`It takes them three years to make
`three years.
`the game.
`And it's different people that are
`making the games.
`From a code base overlap,
`there is some code base overlap, that's for
`sure, but that code base overlap could go back a
`long time.
`And, you know, in light of the
`thousands of pages of infringement contentions
`it's a bit hard for us to say that, you know,
`these games are just updated versions, because
`clearly they're not.
`They're basically like a
`brand new movie.
`And that includes many
`technical aspects that, you know, Kathleen can
`explain to you.
`To put it in perspective as to
`what it takes to make these games, it's not a
`matter of three to four people tinkering with it
`and putting some new names on it and then
`releasing it.
`This is a brand new movie that
`takes three years to make.
`Or in the case of
`some of the other games, maybe a bit less time,
`some of other games a bit more time.
`I'll turn
`it back over to Kathleen.
`I'm sorry to
`interrupt.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`Special Master, if I
`MS. BARRY:
`can go back to another point that Mr. Frankel
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 19 of 57 PageID #: 34882
`19
`
`made, he claimed that the, quote, updated
`versions are not different in relevant part.
`Well, we have a fundamental problem with that,
`because right now we don't have infringement
`contentions.
`We don't know what the relevant
`parts are.
`We don't understand what the
`infringement theory is.
`So I don't know how
`anyone can say that the games are not different
`from year to year in relevant part when we don't
`have that fundamental information.
`And he then
`glosses over what are significant differences in
`the games and, you know, he talks about what the
`customer sees.
`And as we put in our belief, we
`quoted from their brief where they say, look,
`the publicly discernable functionality is not
`different.
`Well, that's true, possibly.
`And
`the inventor acknowledged that that could be
`true, but that you would not know whether under
`the hood, so to speak, there were actual
`differences in the game.
`And the one really
`good example here is that FIFA 17 has a new game
`engine, a brand new game engine.
`It's the
`Frostbite engine.
`It's very different.
`It
`handles a lot of functionality.
`To say that
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 20 of 57 PageID #: 34883
`20
`
`that new game engine doesn't make a difference
`at all, particularly when we don't know what the
`theory of infringement is and what the
`infringement contentions are, there's no way you
`can say that.
`
`And so, Mr.
`MR. TOMASULO:
`Frankel -- this is Mike Tomasulo again.
`SPECIAL MASTER:
`Again, you should
`identify yourself.
`I'm sorry, yes.
`MR. TOMASULO:
`This is Mike Tomasulo.
`If I may just say one
`more thing.
`With respect to the -- one of the
`products that was discussed was the Blizzard
`downloader.
`There are three, at least three
`different versions of the Blizzard downloader
`and none of them are really similar at all.
`There's the version that the World of Warcraft
`game started using in February of 2015, before
`the complaint was filed.
`I don't think that
`that's even accused.
`There's the version of the
`Blizzard downloader that was in use before the
`World of Warcraft, before February 2015.
`And
`that can't be accused because it was not -- it
`was not continuing to be used after the date the
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 21 of 57 PageID #: 34884
`21
`And then there's another
`complaints were filed.
`version, it's not a version, it's a different
`product altogether, which is used for the
`classic games.
`Classic games could be implied
`from the title.
`These are very old games,
`there's very minimal financial activity on these
`games and that's a separate third downloader
`that are used for those games.
`They are not
`just different versions.
`And the testimony, and
`the Activision witness testified about this, was
`that the teams that were working on the
`downloader that was in use for World of Warcraft
`before 2015, those teams separated and diverged
`I believe in 2010 or 2012 from the team that
`worked on the classic downloader and at that
`point they become different products altogether.
`There's -- the snippets that relate to
`commonality between products from year over
`year, they don't tell even close to the whole
`story of the differences in these games.
`And --
`SPECIAL MASTER:
`I do think --
`pardon me, counsel.
`I do think I have your
`point with respect to a response to Plaintiff's
`theory that these are, quote, yearly updated
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`1 2 3 4 5 6 7 8 9
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 22 of 57 PageID #: 34885
`22
`So let me -- unless either
`versions, end quote.
`of you have something new to add, let me just
`ask Mr. Frankel, please don't repeat things that
`you've already told me, but if you feel that you
`need to respond to some new point, go right
`ahead.
`
`Special Master, this
`MS. BARRY:
`is Kathleen Barry.
`I apologize, but I do have
`one other point that I think is important.
`SPECIAL MASTER:
`Go ahead.
`MS. BARRY:
`So the other highly
`prejudicial part about this, Special Master, is
`that Plaintiff has taken inconsistent positions
`with regard to analyzing whether products
`infringe.
`And the fact of the matter is when it
`does not favor Plaintiff's case, Plaintiff
`refuses to do an analysis in determination of
`whether a product infringes and instead claims
`that such an analysis would be burdensome and is
`purportedly not necessary.
`When it favors their
`case to say that a product infringes with
`regard, for instance, to these newer products,
`Plaintiff is happy to say that all we have to do
`is no analysis, we can just say that there are
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 23 of 57 PageID #: 34886
`23
`
`And I want to give the
`updated versions.
`Special Master a really concrete example of
`this.
`We asked Plaintiff and you, the Special
`Master, ordered Plaintiffs to give us the date
`of the hypothetical negotiation.
`And that is
`the date on which each of the Defendants
`And
`supposedly first infringed the patent.
`after your order Plaintiff responded and said
`the date of the hypothetical negotiation is the
`date of service of the original complaint.
`Okay.
`Now, what does that mean?
`Okay.
`That
`means that the day before the date of service,
`say the date of filing or even a month before
`the date of service or six months before the
`date of service, those products were supposedly
`not infringing, even though many of those
`products or some of those products were out in
`the market for months, some years.
`And yet
`Plaintiff will say they don't infringe before
`the date of service of this first complaint,
`even though there's no difference between the
`products two days before we were served with the
`complaint and the day we were served with the
`complaint.
`It makes no sense.
`The Plaintiff
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 24 of 57 PageID #: 34887
`24
`wants to take the inconsistent position that it
`doesn't have to do an analysis here, it can
`shortchange the analysis because it's in
`response to an interrogatory from Defendants,
`when here Plaintiff wants to add products, it's
`like well, there's nothing to do, it's just the
`product should be in.
`So that is highly
`prejudicial.
`That is highly prejudicial to my
`client and that's a problem that we have here
`and is exacerbated by Plaintiff's attempt at
`this very late date to try to add all these new
`products into the case.
`SPECIAL MASTER:
`Frankel, anything new to add?
`MR. FRANKEL:
`Yes, very briefly,
`Special Master.
`You know, the comment that
`counsel just made relates to the damages window
`and when the timing is for the hypothetical
`negotiation that's relevant to damages.
`And you
`know, the rule in this case is that the date of
`damages is when the case was filed.
`You know,
`that's where that issue is.
`We're not looking
`to shortchange anything on the infringement
`analysis.
`That's why we're asking for discovery
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`All right.
`
`Mr.
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 25 of 57 PageID #: 34888
`25
`
`including source code review on these products
`so we can confirm our understanding.
`And I'm
`not going to, you know, read into the record all
`of the deposition testimony, but we've cited it
`in our exhibits.
`I think it's very clear that
`there's substantial overlap for the networking
`functionality that's at issue here between these
`updated versions.
`And just finally on the
`timing, I think that the e-mail chain is very
`clear that even in April there were discussions
`going on and this week my colleague was saying
`she was going to move the Special Master to
`compel if we didn't get discovery on these
`products.
`So you know, whether it was in March
`or it was in April that the discussions were
`intensifying on this point, there was still
`plenty of time at that point for the discovery
`to be concluded and there's time for the
`discovery to be made available now.
`SPECIAL MASTER:
`All right.
`Let me ask you next to turn to your
`good.
`second motion to compel.
`And this is a motion
`to depose Mr. Hind and it's directed to
`Take-Two.
`And you have Take-Two's responsive
`
`Very
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 26 of 57 PageID #: 34889
`26
`
`How do you reply to their points, Mr.
`
`brief?
`Frankel?
`
`Well, Special
`MR. FRANKEL:
`Master, the first point is that they say that
`the witness is irrelevant.
`I don't see how that
`can be seriously challenged.
`He's one of the
`three individuals that the company identified as
`knowledgeable about how the networking
`functionality at issue works in the accused
`product.
`He was one of the lead programmers for
`the functionality.
`We've had one deposition so
`far.
`We asked many relevant questions for which
`we did not get sufficient answers, which is why
`we're continuing to seek discovery.
`Mr. Bocca
`referred to Mr. Hind as one of the people he
`would turn to if he had questions about the
`functionality.
`When he was asked questions
`about portions of source code, he said I don't
`know, I'll defer to the author of the source
`code.
`Mr. Hind is one of those authors.
`And
`I'll remind the Special Master that Take-Two has
`not produced any documents, not how their
`products work, they just said you have our
`source code and you can ask witnesses about the
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
`
`19801
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`Case 1:16-cv-00455-RGA Document 505 Filed 04/26/20 Page 27 of 57 PageID #: 34890
`27
`
`So we're going to be
`source code, that's it.
`going -- you know, in terms of the relevance,
`it's plainly relevant and the only real question
`I think is is it disproportionate to the needs
`of the case to take three depositions on the
`very complicated accused product.
`That
`certainly isn't an unusual amount in a patent
`case.
`You know, I'll note again that on
`Defendant's side they've sought 11 days of
`depositions on the topic of the early
`development work at Boeing with Swan, literally
`11 days.
`And in comparison, the functionality
`of one of these is a much more complicated and
`involved topic and it's not unreasonab
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
