MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 92

LODGED Proposed Joint Proposed Final Pretrial Order. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by MDY Industries, LLC, Michael Donnelly. (Venable, Lance)

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SONNENSCHEIN NATH & ROSENTHAL Christian S. Genetski (Pro Hac Vice) LLP Shane M. McGee (Pro Hac Vice) Scott Stein (AZ Bar No. 022709) 1301 K Street, NW, Suite 600-East Shaun Klein (AZ Bar No. 018443) Tower 2398 East Camelback Road, Suite 1060 Washington, DC 20005 Phoenix, AZ 85016-9009 Facsimile [phone] Facsimile [phone] Telephone [phone] Telephone [phone] Attorneys for Defendants Vivendi Games, Inc. and Blizzard Entertainment, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MDY INDUSTRIES, LLC, Plaintiff and Counter-Claim Defendant vs. BLIZZARD ENTERTAINMENT, INC., and VIVENDI GAMES, INC. Defendants and Counter-Claim Plaintiffs. BLIZZARD ENTERTAINMENT, INC., and VIVENDI GAMES, INC. Third-Party Plaintiffs, vs. MICHAEL DONNELLY, Third-Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: CV06-02555-PHX-DGC JOINT PROPOSED FINAL PRETRIAL ORDER

The Honorable David G. Campbell

The following is the joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for September 24, 2008 at 4 p.m. A. TRIAL COUNSEL FOR THE PARTIES Plaintiffs/Counter Claim-Defendant/Third-Party Defendant:

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Lance C. Venable ([e-mail]) Joseph Richard Meaney ([e-mail]) 1938 East Osborn Road Phoenix, AZ 85016 Facsimile [phone] Telephone [phone] Defendant/Counter Claim-Plaintiffs: Christian S. Genetski ([e-mail]) Shane M. McGee ([e-mail]) Marc J. Zwillinger ([e-mail]) 1301 K Street, NW, Ste 600E Washington, DC 20005 Facsimile [phone] Telephone [phone] B. STATEMENT OF JURISDICTION 1. Jurisdiction in this case is based on the existence of a federal question under 28 U.S.C. § 1331 and diversity of citizenship under 28 U.S.C. § 1332. 2. Jurisdiction is not disputed. C. STIPULATIONS AND UNCONTESTED FACTS AND LAW In the interest of judicial economy and to eliminate the expense and uncertainty of a jury trial on Blizzard's damages claims, the parties have filed concurrently with this Pretrial Order a Proposed Order and Stipulated Judgment on the amount of damages that Blizzard should be awarded pursuant to Counts I, II and III. In addition, the parties seek to have the Court directly resolve the only remaining disputed issues of fact and law, namely the remaining portions of the DMCA claim and the personal liability of Michael Donnelly on Blizzard's copyright, tortious interference and DMCA claims, as well as the appropriateness of permanent injunctive relief, without recourse to a jury trial.1 Accordingly, the parties submit in connection with this PreTrial Order their respective Upon entry of the stipulated judgment, Blizzard will dismiss its claims for trademark infringement and unjust enrichment.
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Proposed Findings of Fact and Conclusions of Law on the issues of MDY's DMCA liability and the personal liability of Michael Donnelly for resolution at a bench trial before this Court. D. CONTESTED ISSUES OF FACT AND LAW Because the parties intend to try all issues to the Court and not a jury, their respective Proposed Findings of Fact and Conclusions of Law on all remaining claims are filed concurrently herewith. E. LIST OF WITNESSES Witnesses for Defendant/Cross-Plaintiff Blizzard: (a) Witnesses who shall be called at trial: Fact Witnesses: Greg Ashe, Manager of Technical Research, Blizzard Entertainment, Inc. (b) Witnesses who may be called at trial: Matthew Versluys, Lead Software Engineer, Blizzard Entertainment, Inc. Michael Donnelly (c) Witnesses who are unlikely to be called at trial: Expert Witness: None Witnesses for Plaintiff/Counterclaim Defendant MDY and Third-Party Defendant: Fact Witnesses: (a) Witnesses who shall be called at trial: Michael Donnelly, MDY Industries, LLC. Gregory Ashe, Blizzard Entertainment Matthew Versluys, Blizzard Entertainment
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(b) Witnesses who may be called at trial: None (c) Witnesses who are unlikely to be called at trial: None Expert Witnesses: Joseph Calandrino

F. LIST OF EXHIBITS 1. The following exhibits are admissible in evidence and may be marked in evidence by the clerk: MDY's Exhibits: See Attached List as Attachment A hereto Blizzard's Exhibits: See Attached List as Attachment B hereto 2. stipulations: MDY's Exhibits: Authenticity stipulated. Blizzard's Exhibits: Authenticity stipulated. 3. As to the following exhibits, the party against whom the exhibit is to be As to the following exhibits, the parties have reached the following

offered objects to the admission of the exhibit and offers the objection stated below: MDY's Exhibits: None. Blizzard's Exhibits: None. 4. Each party hereby acknowledges by signing this joint Proposed Final

Pretrial Order that any objections not specifically raised herein are waived: G. DEPOSITIONS TO BE OFFERED MDY's Depositions: Gregory Ashe and Matthew Versluys Blizzard's Depositions: Joseph Calandrino, Michael Donnelly, Robert Hale, and Marcus Eikenberry
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Each party hereby acknowledges by signing this joint Proposed Final Pretrial order that any deposition not listed as provided herein will not be allowed, absent good cause. H. MOTIONS IN LIMINE The following Motions in Limine have been filed pursuant to the instructions contained in this Court's order Setting Final Pretrial Conference: None. I. In addition to the Motions in Limine listed in section H, the following motions are pending: Blizzard Entertainment, Inc. and Vivendi Games, Inc.'s Motion for a Permanent Injunction or in the Alternative to Amend this Court's Judgment Entered July 14, 2008. J. PROCEDURES FOR EXPEDITING TRIAL As noted above, the parties have submitted a proposed Order and Stipulated Judgment to resolve all damages issues in connection with the Court's entry of summary judgment in favor of Blizzard on Counts I, II and III of its Counterclaims. The only remaining issues involve only narrow disputes of fact, and the parties have presented in their Proposed Findings of Fact a number of stipulated facts to facilitate the Court's resolution of these issues at a bench trial. Finally, Blizzard intends to dismiss its trademark and unjust enrichment claims. K. ESTIMATED LENGTH OF TRIAL 1 hour for opening statements and closing arguments 3 hours for Blizzard's Case 2 hours for MDY's case 1 hour for rebuttal
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L. JURY DEMAND The parties have agreed to try all remaining claims to the Court. M. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS. The separately lodged Proposed Findings of Fact and Conclusions of Law on liability for Blizzard's claims against MDY for violations of the DMCA, and addressing the individual liability of Michael Donnelly on Blizzard's copyright, tortious interference and DMCA claims, are incorporated by reference into this Joint Proposed Pre-Trial Order. N. JOINT PROPOSED JURY INSTRUCTIONS, JOINT PROPOSED VOIRE DIRE QUESTIONS, AND PROPOSED FORMS OF VERDICT FOR JURY TRIALS. The parties have elected to proceed with their remaining claims by trying them to the Court. Consequently, the parties have not filed jury instructions, voire dire, or forms of verdict. O. CERTIFICATIONS 1. All discovery has been completed. 2. The identity of each witness has been disclosed to opposing counsel. 3. Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3) has been disclosed and shown to opposing counsel. 4. The parties have complied in all respects with the mandates of the Court's Rule 16 Scheduling Order and Order Setting Final Pretrial Conference. 5. The parties have made all of the disclosures required by the Federal Rules of Civil Procedure (unless otherwise previously ordered to the contrary). 6. The parties acknowledge that once this Proposed Final Pretrial Order has been signed and lodged by the parties, no amendments to this Order can be made without leave of Court.
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Dated: September 10, 2008 Shaun Klein SONNENSCHEIN NATH & ROSENTHAL LLP 2398 East Camelback Road, Ste 1060 Phoenix, AZ 85106-9009 Telephone: [phone] Facsimile: [phone]

Respectfully submitted, /s/ Christian S. Genetski Christian S. Genetski Shane M. McGee 1301 K Street, NW, Ste 600E Washington, DC 20005 Facsimile [phone] Telephone [phone]

Attorneys for Defendants Blizzard Entertainment, Inc. and Vivendi Games, Inc. /s/Lance C. Venable /s/Joseph R. Meaney Venable, Campillo, Logan & Meaney, P.C. 1938 East Osborn Rd. Phoenix, Arizona 85016 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and Third-Party Defendant

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