Acceleration Bay LLC v. Activision Blizzard Inc.

Filing 285

MEMORANDUM ORDER regarding the objections to Special Master Order #6 (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 9/5/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
ACCELERATION BAY LLC,
Plaintiff,

v.

Civil Action No. 16-453-RGA

ACTIVISION BLIZZARD, INC.,
Defendant.

ACCELERATION BAY LLC,
Plaintiff,

v.

Civil Action No. 16-454-RGA

ELECTRONIC ARTS, INC.,
Defendant.

ACCELERATION BAY LLC,
Plaintiff,

v.

Civil Action No. 16-455-RGA

TAKE-TWO INTERACTIVE
SOFTWARE, INC., et al.,
Defendants.

MEMORANDUM ORDER
Plaintiff has filed objections to Special Master Order #6. (No. 16-453, DJ. 254).
While I understand the basis for the Special Master's Order, it seems to me that
there is another way to handle the disputes.

As to RFP Nos. 150 & 165, I do not think Defendants need the documents to
contest Plaintiffs assertion in the Complaint that it is an operating company, as, if it does
not produce the requested documents, I will bar it at trial (and at the injunction stage, if
we get there) from offering evidence that it is an operating (including incubating,
whatever that means) company (which in any event, it does not appear in any substantial
sense to be). (I do not expect, either, to allow Defendants to refer pejoratively to
Plaintiff. I would expect the testimony to be, from Ward, I'm the President and CEO of
this one-person company (or two persons, if it also employs a patent valuation expert)).
Thus, Plaintiff can either accept my anticipatory ruling, or Plaintiff can respond to the
two RFPs. Plaintiff should within two days advise Defendants which choice it makes.
As to RFP No. 139, I am unclear what the documents between Plaintiff and its
lender are supposed to contain. If they are simply accounting, that is, this is how Plaintiff
spent the lender's money, they are irrelevant. If they contain something more, then they
might be relevant, to the same extent as the documents that are called for by RFP Nos.
150 & 165. Based on the submissions, I do not think Plaintiff has done anything more
than boldly assert Mr. Ward's communications with his lender are work product. (See
D.I. 255-1, Exh. B, depo. p. 151; D.I. 255-1, at 277).
As I understand it, Plaintiffs litigation financing is publicly available. Thus, with
that understanding, I am not convinced that Defendants need the unredacted agreement
(although I agree with Defendants and the Special Master that my earlier ruling was in a
different context and does not foreclose Defendants' request at this time). I do not think
the unredacted agreement, or any other documents, are likely relevant to the determining
the purchase price, which appears to be $250,000 with the possibility of substantial

additional payments of up to $22,000,000. (D.I. 254, p.5 n.4). In any event, the purchase
price is determined by the agreement between Plaintiff and Boeing. Thus, I do not
require production of an unredacted copy of the agreement.
The source of the $250,000 payment is a different matter. The circumstances are
mysterious as to how it could have been made before Plaintiff had any financing.

There

is enough smoke there to make it relevant to impeachment. Thus, Plaintiff must respond
to RFP No. 167.
Thus, as stated above, I adopt the Special Master's Order as to RFP No. 167, and
as to the balance, Plaintiff need not produce any of the requested documents, as they are
not relevant to the issues that will remain in the case. If, however, Plaintiff wants to be
able to argue that it should be allowed to present evidence at trial that it is an "operating
company," then it must comply with the Special Master's Order as to the other three
RFPs.
IT IS SO ORDERED this -5:.._ day of September 2017.