Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 1 of 160 PageID #: 35670
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`Page 1
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` 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. :
`
` Wilmington, Delaware
` Wednesday, September 6, 2017 at 2:30 p.m.
` TELECONFERENCE
`
`Ellie Corbett Hannum, Registered Merit Reporter
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`
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`Page 1
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` 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. :
`
` Wilmington, Delaware
` Wednesday, September 6, 2017 at 2:30 p.m.
` TELECONFERENCE
`
`Ellie Corbett Hannum, Registered Merit Reporter
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`
`
`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 2 of 160 PageID #: 35671
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`B E F O R E : S P E C I A L M A S T E R A L L E N M . T E R R E L L
` - - -
`A P P E A R A N C E S :
`
` P O T T E R A N D E R S O N & C O R R O O N
` B Y : J O N A T H A N A . C H O A , E S Q .
` j c h o a @ p o t t e r a n d e r s o n . c o m
`
` a n d
`
` K R A M E R L E V I N
` B Y : A A R O N F R A N K E L , E S Q .
` a f r a n k e l @ k r a m e r l e v i n . c o m
`
` ( N e w Y o r k , N e w Y o r k )
`
` B Y : P A U L J . A N D R E , E S Q .
`
` ( S i l i c o n V a l l e y , C a l i f o r n i a )
`
` C o u n s e l f o r P l a i n t i f f
`
` 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
` B Y : S T E P H E N J . K R A F T S C H I K , E S Q .
` s k r a f t s c h i k @ m n a t . c o m
` a n d
` W I N S T O N & S T R A W N L L P
` B Y : D A V I D P . E N Z M I N G E R , E S Q .
` d e n z m i n g e r @ w i n s t o n . c o m
` ( M e n l o P a r k , C a l i f o r n i a )
` B Y : M I C H A E L A . T O M A S U L O , E S Q .
` m t o m a s u l o @ w i n s t o n . c o m
`
` ( L o s A n g e l e s , C a l i f o r n i a )
`
` B Y : K A T H L E E N B . B A R R Y , E S Q .
` k b a r r y @ w i n s t o n . c o m
` ( C h i c a g o , I l l i n o i s )
`
` C o u n s e l f o r D e f e n d a n t s
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 3 of 160 PageID #: 35672
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`APPEARANCES (Continued):
`
` FOX ROTHSCHILD, LLP
` BY: GREGORY B. WILLIAMS, ESQ.
` gwilliams@foxrothschild.com
`
` and
`
` WILMERHALE
` BY: TARA D. ELLIOTT, ESQ.
` tara.elliott@wilmerhale.com
`
` (Washington, D.C.)
`
` Counsel for Sony Interactive
` Entertainment America LLC
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 4 of 160 PageID #: 35673
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`Page 4
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` MR. FRANKEL: Special Master, I believe
`
`everyone is here on behalf of Plaintiff.
`
` SPECIAL MASTER TERRELL: All right. Thank
`
`you, Mr. Frankel. And, Defendants, do you have everybody
`
`aboard?
`
` MR. BLUMENFELD: Your Honor, it's Jack
`
`Blumenfeld. Yes, we do.
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` SPECIAL MASTER TERRELL: And is Sony
`
`available?
`
` MS. ELLIOTT: This is Tara Elliott from
`
`WilmerHale. I want to confirm my colleague, Greg
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`Williams, is on the line.
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` SPECIAL MASTER TERRELL: I am prepared as
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`Special Master to proceed even if Mr. Williams is not yet
`
`on the line. And I also would be happy to accommodate
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`Sony by taking the motion that Plaintiff filed on August
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`16th with respect to Sony, Boeing, and others to hear
`
`that motion.
`
` MR. WILLIAMS: Greg Williams.
`
` SPECIAL MASTER TERRELL: Greg, welcome.
`
`Allen Terrell.
`
` Why don't we do this, I will, as Special
`
`Master, for the record note that this is the hearing
`
`scheduled on Defendants' motions to compel filed on
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 5 of 160 PageID #: 35674
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`Page 5
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`August 16th and one of Plaintiff's motion to compel filed
`
`on the same date. This is in Civil Action 16-453, 454,
`
`and 455.
`
` Let's have a roll call and keep in mind
`
`when we speak it's helpful to announce who you are so the
`
`court reporter can handle recording everything that comes
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`through in this hearing.
`
` Sony, we accommodated you in terms of
`
`scheduling, so why don't you start with the roll call.
`
` MR. WILLIAMS: Greg Williams from Fox
`
`Rothschild, and with me on the line is co-counsel, Tara
`
`Elliott.
`
` MS. ELLIOTT: Good afternoon, and thank
`
`you again for accommodating Sony. We do appreciate it.
`
` SPECIAL MASTER TERRELL: Plaintiff, go
`
`ahead.
`
` MR. CHAO: Jonathan Chao, with me is Aaron
`
`Frankel from Kramer Levin.
`
` SPECIAL MASTER TERRELL: Thank you.
`
` Defendants.
`
` MR. BLUMENFELD: Good afternoon,
`
`Mr. Terrell. Jack Blumenfeld and Steve Kraftschik from
`
`Morris Nichols for all of the Defendants, along with
`
`David Enzminger, Kathleen Barry, and I don't know whether
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 6 of 160 PageID #: 35675
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`Page 6
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`Mike Tomasulo is on or not.
`
` MR. TOMASULO: I am, thank you, Jack.
`
` MR. BLUMENFELD: All right.
`
` SPECIAL MASTER TERRELL: Let's start, as
`
`we agreed, with Plaintiff's motion to preclude or have
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`unredacted documents from certain parties or certain
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`companies produced. It's Plaintiff's motion, Sony and
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`Defendants have responded, so why don't you proceed,
`
`Mr. Frankel.
`
` MR. FRANKEL: Thank you, Special Master,
`
`and good afternoon. As is the case I will pick up where
`
`the opposition briefs left off.
`
` And Defendants and Sony are effectively
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`asking you to make new law in two ways. The production
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`of license agreements with royalty rates is the bread and
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`butter of discovery in patent cases. That's a very
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`typical and common source of evidence in the damages
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`analysis.
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` In suggesting that the royalty rate should
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`be withheld because of a purported lack of comparability,
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`that would be new law because there are no cases for
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`withholding the evidence in a discovery issue based on
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`comparability. That's something that experts talk about
`
`later in the case in terms of if they can ultimately be
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 7 of 160 PageID #: 35676
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`Page 7
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`relied on. But no one has cited any authorities
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`justifying even withholding the document.
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` And then the second point that the royalty
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`rate information is sensitive, there have also been -- we
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`are not disputing that that information is sensitive, but
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`there are no cases supporting withholding that kind of
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`relevant information in a case just because of the
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`importance of sensitivity.
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` So I will talk about both of those points,
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`but before I do I wanted to clarify the scope of the
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`relief that Acceleration Bay is seeking, which has been
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`narrowed in view of developments in the case. As we have
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`indicated in the submission to the Special Master and
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`discussed with Defendants and with counsel of Sony, with
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`the dismissal of the Sony products based on the standing
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`issue, there's no longer an issue about Sony Defendants'
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`purported licensing defense, so it no longer makes sense
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`to seek preclusion of the agreement. And we are also no
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`longer seeking production of the entire agreements. We
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`only seek to have the portions of the agreements that
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`were redacted relating to the financial terms, and
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`specifically the royalty rate information to be unmasked
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`and produced in the case.
`
` Do you have any questions about that,
`
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 8 of 160 PageID #: 35677
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`Page 8
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`Special Master?
`
` SPECIAL MASTER TERRELL: No, I don't.
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` MR. FRANKEL: Okay. So then I will just
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`turn to the two points. First, which is: Are these
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`agreements relevant? And they are clearly relevant under
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`the caselaw. As I have indicated and as we have
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`indicated in the briefing, royalty rates are classic
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`evidence that experts rely on to figure out what the
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`damages should be in a patent case. They are a part of
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`almost every case. We are not disputing the law that
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`they have to be technically and economically comparable
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`to be relied on by experts, but that's something that the
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`experts battle about.
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` They look at the license agreements. They
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`talk about which ones are comparable and which ones
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`aren't. That's something that's discussed at deposition.
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`It's a subject of cross-examination. And there haven't
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`been any cases cited that would support withholding
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`agreement under the 401 standard of the Rules of Evidence
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`which sets a very low bar for relevance.
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` The cases that Defendants and Sony cited
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`to were ones where, you know, at the conclusion of a
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`trial, the Federal Circuit found that it was improper for
`
`an expert to rely on a certain license agreement because
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 9 of 160 PageID #: 35678
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`Page 9
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`it wasn't similar enough to the hypothetical negotiation
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`in the case.
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` Even if the Special Master were inclined
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`to make new law as to looking at the comparability of a
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`license agreement as a threshold issue to decide if its
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`terms should even be produced, this wouldn't be the case
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`to do it. Here, we have the situation where the Sony
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`license agreement, as of a week ago, Defendants were
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`saying that this very agreement provided them with a
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`license to Acceleration Bay's patents. And the agreement
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`covered versions of the products that are still being
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`accused of infringement in this case.
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` So it's directly on point in terms of a
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`royalty that was negotiated between Sony and the
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`Defendants for technology that's used in the accused
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`products. It's undisputed that Sony and Microsoft
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`provide networking technology that the Defendants
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`incorporate into their products; Acceleration Bay is
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`providing networking technology. So it's in the same
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`field and these agreements are plainly relevant.
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` Do you have any questions about the
`
`relevance issue before I move on?
`
` SPECIAL MASTER TERRELL: I don't.
`
` MR. FRANKEL: Okay. Thank you, Special
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 10 of 160 PageID #: 35679
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`Page 10
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`Master. And then on the issue of the sensitive nature of
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`the royalty information, we understand that royalty rates
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`are sensitive. Of course, that's true in every case.
`
`Defendants have produced in this case a number of license
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`agreements with the royalty rate information as parties
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`do in every case. And we have a strong protective order
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`in this case. Defendants have made their source code
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`available, Acceleration Bay has made their source code
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`available, Sony's source code has been made indirectly
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`available, Microsoft has produced source code under the
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`protective order in this case. So we do have a
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`protective order.
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` The fact that Defendants are all
`
`represented by the same counsel can help them ensure that
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`there's going to be no transfer of the royalty rate
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`information from one party to another. And while the
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`information is highly confidential, that's true in every
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`case, and there's no authority cited by Defendants or
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`Sony suggesting that they can withhold this highly
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`relevant information because they consider it a trade
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`secret.
`
` Finally, I will note that we have no
`
`objection for Microsoft or Bungie to the production of
`
`their agreements without redactions on the financial
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 11 of 160 PageID #: 35680
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`Page 11
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`terms. As far as the Microsoft agreement, there's no
`
`indication that the rates are any different between any
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`of the Defendants. And as I've noted, they have already
`
`turned over source code. And then as far as the Bungie
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`agreement, they have also not asserted any objections in
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`this case, and they have made their source code available
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`in the case under a protective order.
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` SPECIAL MASTER TERRELL: So as to this
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`motion, Mr. Frankel, it's only directed at this stage
`
`towards Sony's agreement?
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` MR. FRANKEL: No, Special Master, we are
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`seeking production of the Sony agreements, the Microsoft
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`agreements, and the Bungie agreements. To be clear, we
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`have received --
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` SPECIAL MASTER TERRELL: Go ahead.
`
` MR. FRANKEL: After you, Special Master.
`
` SPECIAL MASTER TERRELL: No, but I thought
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`you just said that there's no objection from Bungie or
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`Microsoft?
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` MR. FRANKEL: That is correct. The
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`objection is from Defendants as to Microsoft and Bungie.
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`Sony has sought to intervene to itself assert objections.
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` SPECIAL MASTER TERRELL: Now I understand,
`
`thank you. Got it.
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 12 of 160 PageID #: 35681
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`Page 12
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` MR. FRANKEL: And just to be clear, we
`
`have received redacted copies of these agreements.
`
`There's been no dispute from anyone that they are
`
`relevant to the case. The only remaining issue is are we
`
`going to get the actual royalty rate and the other
`
`financial term information or not, which has been
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`redacted?
`
` SPECIAL MASTER TERRELL: Got it. Thank
`
`you.
`
` Do Defendants want to speak next or is
`
`this Sony's?
`
` MS. ELLIOTT: Special Master, this is
`
`Kathleen Barry, I think if it's okay with Sony, I would
`
`like to speak first and I will try to limit myself to
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`things that I don't believe will be addressed by Sony, if
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`that's okay.
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` SPECIAL MASTER TERRELL: That's fine.
`
`Thank you, go ahead, Ms. Barry.
`
` MS. BARRY: Okay. If I can first address
`
`the last point that was the subject of your question,
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`Special Master, about whether or not there's objections
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`from Bungie and Microsoft.
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` SPECIAL MASTER TERRELL: Yes.
`
` MS. BARRY: Although Bungie and Microsoft
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 13 of 160 PageID #: 35682
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`Page 13
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`have not sought to intervene in this case, my
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`understanding from them is that they do object, strongly
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`object, because they feel the same way as Sony does, that
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`this is highly confidential information that should not
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`be disclosed to the Plaintiff in this case and that there
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`is no relevance and reason for it to be disclosed. They
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`just have not at this time sought to intervene in this
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`matter. I don't know if their position may change in the
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`future or not, but my understanding is that they do
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`object to disclosure of this information.
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` SPECIAL MASTER TERRELL: I understand
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`that, too, from your brief. I just wanted to be clear
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`after hearing Mr. Frankel. Thank you.
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` MS. BARRY: Okay. So then going back to
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`the beginning, I think what might be helpful is to ask
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`ourselves the question: Why is it that Plaintiff brought
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`this motion now, right? They brought this motion before
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`Judge Andrews had ruled on our motion to dismiss Sony.
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`And as we said in our papers and I think is clear, the
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`original main point of this motion for them, Plaintiff,
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`was to try to eliminate our very valid defense here that
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`the Sony products are licensed. And Plaintiff was seeing
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`very strong evidence from us that Sony not only
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`distributes the digital copies of the product, but Sony
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 14 of 160 PageID #: 35683
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`Page 14
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`also is responsible for the replication of the products.
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` So we won on that issue and that mooted
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`all of that out. And so now Plaintiff sort of has to
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`backtrack and say, Okay, well, how can we use this Sony
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`relationship? And when I say they have to backtrack, I
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`really mean they have to come up with some kind of
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`relevance argument because it's not an argument that they
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`have been developing, even though they have known for a
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`very long time about these relationships and they have
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`known for a very long time that there are royalties paid.
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` Mr. Frankel suggests to you that you would
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`have to make new law here. And he is absolutely wrong.
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`You don't have to make new law at all. Rule 26 plainly
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`says that the only things that have to be produced are
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`things that are both relevant and proportional to the
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`needs of the case. And courts all the time assess
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`relevancy and determine relevancy and say this
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`information is not relevant, it does not need to be
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`produced.
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` The cases that we have cited to you are
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`clearly defining what is and what is not relevant. And
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`there are quite a few. And they make very clear that
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`complex agreements like these, which are not relevant to
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`a simple patent dispute where there are a limited number
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 15 of 160 PageID #: 35684
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`Page 15
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`of patents and you are talking about a damages model
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`based on those limited patents. There's just -- it's not
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`even close. There's no relevance to these agreements.
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`Mr. Frankel's characterization that his client, like Sony
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`and Microsoft, provides networking technology to the
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`Defendants is not even close to reality. We, the
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`Defendants, get not only the ability to make games that
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`can be played on a whole platform, a gaming platform, but
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`Sony and Microsoft go out and they sell those platforms
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`to millions of customers. And they support those
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`platforms and they support the network and the technology
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`that goes behind it. It's a very vastly different
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`relationship from the type of relationship that would be
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`involved in a licensing negotiation.
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` SPECIAL MASTER TERRELL: But, Ms. Barry, I
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`gather what Mr. Frankel is arguing is, All right, there
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`is a slightly or a somewhat different relationship, but
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`there is a royalty rate, and he is entitled to see that
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`royalty rate and let the experts argue as to whether when
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`it comes to damages the Court is convinced that the
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`royalty rate with Sony or Bungie or Microsoft is
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`comparable to that which would be used to calculate
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`damages.
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` So are you sort of jumping to the stage of
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 16 of 160 PageID #: 35685
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`Page 16
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`experts arguing comparability as opposed to at this
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`initial stage of discovery?
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` MS. BARRY: So, no, we are not jumping to
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`the stage of expert discovery as opposed to this initial
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`stage of discovery.
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` Under Mr. Frankel's theory of relevance,
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`every license agreement that included a patent or that
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`was to any technology that the Defendants had would be
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`relevant and he would be allowed to have it, and his
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`experts would be allowed to examine it and to figure out
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`whether or not they think it's comparable. That is not
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`what Rule 26 provides. Rule 26 provides there must be
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`some relevance first. There must be some relationship.
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`And here there is simply no relationship. It's not even
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`close to being a comparable license. These agreements
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`are, as I said, multifaceted agreements, which include
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`and describe significant business relationships between
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`the Defendant and Sony, Microsoft, and Bungie, and they
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`cover many, many aspects of those relationships. They
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`are not simple patent licenses by any stretch of the
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`imagination.
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` SPECIAL MASTER TERRELL: But let me jump
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`in there a minute, if you don't mind.
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` That may certainly be true and that might
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 17 of 160 PageID #: 35686
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`Page 17
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`go to the broader scope of something beyond what the
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`royalty rate is, but at least initially, isn't he right
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`that at this stage the royalty rate can be disclosed and
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`then further along the line in the litigation you can
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`explain why the agreement is so different that the
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`royalty rate ought not to be applied to damages here?
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` MS. BARRY: I would respectfully disagree.
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`I don't think he is right. Again, I think if his
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`definition of relevance is the standard by which we
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`measure whether or not agreements are relevant in a
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`patent case, then all the agreements that any Defendant
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`has are going to be relevant under that standard, and the
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`Defendants might as well produce every agreement. And I
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`certainly don't think that that's the standard and that
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`anyone intended that to be the standard.
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` Not only does it totally wipe out Rule
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`26's relevancy requirement, it also eliminates the
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`proportionality requirement. And here we have
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`significant issues with proportionality; namely, the harm
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`that will come to third parties like Sony, which I will
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`let Sony address, but that's a significant issue here in
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`addition to the relevancy. And, again, it's not
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`relevant. There has to be an ability for the Court or
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`you, the Special Master, to measure relevancy of license
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 18 of 160 PageID #: 35687
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`Page 18
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`agreements. And what Mr. Frankel is proposing is that
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`there is no measure of relevancy. That's not the
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`standard.
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` SPECIAL MASTER TERRELL: Do you want to
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`take a second then and draw for me what you see as the
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`bright line between what would be a relevant agreement
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`for purposes of royalties in this type of litigation as
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`opposed to the type of agreement that your client has
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`with Sony? Where do you see the bright line between the
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`two?
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` MS. BARRY: Well, I think that the line is
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`certainly more in the direction of licenses that are to
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`patents and not licenses that -- and to call these
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`agreements with Sony and Microsoft, Bungie licenses is
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`not a proper characterization. Again, they are
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`agreements reflecting extremely complex business
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`relationships. So what in my experience is typically
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`produced in these cases is straight patent license
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`agreements.
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` Sometimes, if there is an agreement which
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`has maybe something a little bit more than a patent
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`license, you know, a piece of software maybe, something
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`small, but here these ones are so clearly in the not-
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`relevant bucket, given the extensive nature of the
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 19 of 160 PageID #: 35688
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`Page 19
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`business relationship between Defendants and these three
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`companies, that it's just not even close.
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` SPECIAL MASTER TERRELL: Ms. Barry, I
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`apologize, but this is helpful to me to have this
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`dialogue with you.
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` Would you say, then, the distinction that
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`you are drawing is that the three agreements here don't
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`constitute the type of license agreement of a patent
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`because these three companies are not seeking to use or
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`in any way employ your client at what you call your
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`patent rights? Is that the distinction?
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` MS. BARRY: Yes, I think that is certainly
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`part of it, Special Master. I mean, you have to
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`recognize that these agreements, as I said -- and I
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`apologize for repeating it -- they reflect ongoing
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`business relationships that have been going on for a
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`number of years. The Sony agreement gives Defendants, it
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`gives them a bunch of software, which up until Judge
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`Andrews ruled that the Sony products were out of the
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`case, was I understand part of Plaintiff's infringement
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`theory, which is called the Sony XPK.
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` So from Sony we get access to the Sony
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`XPK. We get access to put our game playable on their
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`platform. We get access to their, what they call their
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 20 of 160 PageID #: 35689
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`Page 20
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`authorized replicator, which is the entity that actually
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`makes the disk, so if you have been in the store and have
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`seen the boxes with the disks in them. It gives us
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`access to be able to have our games played on those Sony
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`PlayStation consoles, which again you may have seen those
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`in the store. It gives us access to a tremendous amount
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`of both technology, networking systems that Sony has
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`behind the scenes that connect up. And it is nothing
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`like a bare-naked patent license.
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` And that is really -- I take fundamental
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`issue with Mr. Frankel's suggestion that Acceleration
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`Bay, even if my clients are somehow infringing these
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`patents and, as you know, we hotly dispute that, but even
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`if they were, the characterization that Acceleration Bay
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`provides the Defendants with networking technology
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`comparable to what Sony and Microsoft provide is just --
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`it's kind of preposterous.
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` SPECIAL MASTER TERRELL: Okay. I think I
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`get your point, and I appreciate your explaining it so
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`well.
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` Do you have another point or two that you
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`want to cover or do you want to let Sony pick up
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`particularly as to the harm that would befall Sony if I
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`granted the Plaintiff's motion?
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 21 of 160 PageID #: 35690
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`Page 21
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` MS. BARRY: I will defer to Sony. I will
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`just say, Special Master, if it's helpful, I can add
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`additional comments to what Sony says about the harm to
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`Microsoft and Bungie that I expect would happen, but I
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`think it's very parallel and similar to what you are
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`going to hear from Sony. So unless you want specific
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`additional on that, I would defer to Sony.
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` SPECIAL MASTER TERRELL: I appreciate
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`that, Ms. Barry. That helps us move it along and,
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`obviously, before we leave this motion, if you feel that
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`other things need to be added for Bungie and Microsoft, I
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`will give you the opportunity.
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` Why don't I hear from Sony now?
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` MS. ELLIOTT: Thank you, Special Master.
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`This is Tara Elliott with WilmerHale on behalf of
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`non-party Sony Interactive Entertainment America. I do
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`want to express thanks again for the opportunity to be
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`heard separate and apart from the Defendants in this
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`action, and I also want to express our appreciation for
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`the accommodation on the schedule.
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` SPECIAL MASTER TERRELL: Thank you, but I
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`point out that actually it's an accommodation by the
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`parties here and counsel for the parties. It's a hotly
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`contested litigation, but counsel have maintained a very
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`Case 1:16-cv-00455-RGA Document 511 Filed 05/27/20 Page 22 of 160 PageID #: 35691
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`Page 22
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`professional relationship, in my opinion.
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` You may proceed.
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` MS. ELLIOTT: I completely agree, and my
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`thanks to counsel on the line as well.
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` We agree in large part with points made by
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`Ms. Barry, and I will endeavor not to be repetitive of
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`her points except for where I think emphasis may be
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`warranted. But I would like to focus my remarks in two
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`primary categories: One is procedural, the other is
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`substantive. And, frankly, both matter to a non-party
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`such as Sony.
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` To just briefly take up the procedural
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`point first, we do think it's important to note that Sony
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`was responding to a motion to compel in which the
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`Plaintiff sought preclusion under Rule 37 as its primary
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`relief, and only as an alternative did Acceleration Bay
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`seek production of an unredacted agreement. So my
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`version of the brief is redacted, at least from what I
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`could see, the vast majority of Acceleration Bay's brief
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`argument is for preclusion.
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` Now, in view -- obviously, we all know in
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`view of the Court's decision dismissing the Sony product
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`from the case, the Plaintiff did narrow its relief to
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`that requesting the production of the financia
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