Bungie Inc v. Aimjunkies.com

1 THE HONORABLE THOMAS S. ZILLY — 2 — — 3 — — 4 — — 5 — — 6 — UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 8 — 9 BUNGIE, INC., No. 2:21-cv-00811 10 Plaintiff, PRETRIAL ORDER 11 v. 12 AIMJUNKIES.COM; PHOENIX DIGITAL GROUP, LLC; DAVID SCHAEFER; JORDAN 13 GREEN; JEFFREY CONWAY; and JAMES MAY, — 14 — Defendants. — 15 — — 16 — Plaintiff Bungie, Inc. (“Bungie” or “Plaintiff”) and Defendants AimJunkies.com, Phoenix — 17 — Digital Group, LLC (“Phoenix Digital”), David Schaefer, Jordan Green, Jeffrey Conway, and — 18 — James May (collectively, “Defendants”) submit the following Pretrial Order. — 19 — I. JURISDICTION — 20 — Jurisdiction is vested in this court by virtue of 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 , — 21 — 1338(a) and is based on the fact that this action arises under the Copyright Act ( 17 U.S.C. § 501 , — 22 — et seq.). — 23 — — 24 — — 25 — — 26 — PRETRIAL ORDER Perkins Coie LLP 1 II. CLAIMS AND DEFENSES 2 Bungie will pursue the following claims for relief at trial: 3 1. Direct, vicarious, and contributory copyright infringement pursuant to the 4 Copyright Act, 17 U.S.C. § 501 , et seq., due to Defendants’ development, sale, and distribution of 5 certain cheat software for Bungie’s Destiny 2 and Destiny 2: Beyond Light1 video games (the 6 “Cheat Software”). — 7 — 8 Defendant James May will pursue the following counterclaim at trial: 9 2. Circumvention of Technological Measures under 17 U.S.C. § 1201 (a) due to 10 Bungie’s unauthorized access to Mr. May personal beyond limits permitted by Mr. May. — 11 — 12 Defendants will pursue the following defenses at trial: 13 3. No software created, developed, marketed, advertised, sold or otherwise distributed 14 by Defendants infringes any copyright of Bungie. 15 4. Defendant James May is not, and never has been, a member, owner, officer, 16 director, employee or otherwise had a controlling interest in Phoenix Digital and is not responsible 17 or liable for any activities carried on by Phoenix Digital. 18 5. The software at issue here was created by parties other than Defendants. 19 6. Defendants did not have access to the software Bungie accuses them of copying. 20 7. Bungie cannot show “substantial similarity” between any software distributed by 21 Phoenix Digital and the copyrighted works asserted by Bungie in this action. 22 8. Phoenix Digital’s distribution of the software at issue in this case did not cause 23 harm or damage to Bungie. — 24 — — 25 — — 26 — 1 Unless otherwise specified, collectively hereafter referred to as, “Destiny 2.” PRETRIAL ORDER Perkins Coie LLP 1 Defendants will pursue the following affirmative defenses at trial: 2 9. Plaintiff’s Amended Complaint fails to state claims for which relief may be granted. 3 10. Plaintiff’s claims for copyright infringement are barred under the clear holding of 4 the Ninth Circuit Court of Appeals in MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 5 F.3d 928 (9th Cir. 2010), that, as a matter of law, alleged breaches of covenants in a copyright 6 license are not acts of copyright infringement. 7 11. Plaintiff’s claims for copyright infringement are barred under the clear holding of 8 the Ninth Circuit Court of Appeals in Lewis Galoob Toys, Inc. v. Nintendo of America, 964 F.2d 9 965 (9th Cir. 1992) that, as a matter of law, the use of software resident on the computer of a game 10 player to enhance the player’s performance of the game does not unlawfully create a “derivative 11 work” or otherwise infringe a copyright. 12 12. All claims for “statutory damages,” “enhanced damages,” “attorneys’ fees” or other 13 relief under 17 U.S.C. §§ 505 , 505 are barred under 17 U.S.C. §§ 412 and the clear holding of the 14 Ninth Circuit Court of Appeals in Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th 15 Cir. 2008) that, “to recover statutory damages, the copyrighted work must have been registered 16 prior to commencement of the infringement,” and that, “the first act of infringement in a series of 17 ongoing infringements of the same kind marks the commencement of one continuing infringement 18 under § 412.” 19 13. Plaintiff’s claims are barred by the doctrine of unclean hands in that they are based 20 on information illegally and unlawfully obtained by Bungie through the unauthorized, clandestine 21 accessing and downloading of information contained in private files on the personal computer of 22 Defendant James May. 23 14. Plaintiff’s claims are barred by the doctrine of unclean hands in that they are based 24 on information illegally and unlawfully obtained by Bungie, Inc., through breach of the Terms of 25 Service of Defendant Phoenix Digital Group LLC. — 26 — PRETRIAL ORDER Perkins Coie LLP 1 15. Plaintiff is precluded from recovering any damages that could have been avoided 2 through the exercise of reasonable care and due diligence. — 3 — 4 Bungie will pursue the following defenses at trial: 5 16. None of the works allegedly accessed by Bungie are works protected by copyright, 6 pursuant to 17 U.S.C. § 1201 (a)(1)(A). 7 17. Bungie did not circumvent any of May’s technological measures that protect any 8 files on his computer as defined in 17 U.S.C. § 1201 (a)(3)(A). — 9 — 10 Bungie will pursue the following affirmative defenses at trial: 11 18. By accepting Bungie’s Limited Software License Agreement (“LSLA”) and 12 Privacy Policy, May authorized Bungie to collect information about his use of the Bungie Services, 13 actions taken within the Bungie Services, and his device, including his computer. The information 14 that May alleges Bungie collected from May’s device is the type of information that May 15 authorized Bungie to collect. May consented to Bungie’s alleged access of May’s computer, files, 16 information, data, and/or copyrighted work(s). 17 19. By accepting Bungie’s Limited Software License Agreement (“LSLA”) and 18 Privacy Policy, May authorized Bungie to collect information about his use of the Bungie Services, 19 actions taken within the Bungie Services, and his device, including his computer. The information 20 that May alleges Bungie collected from May’s device is the type of information that May 21 authorized Bungie to collect. May granted Bungie a license to access May’s computer, files, 22 information, data, and/or copyrighted work(s). 23 20. In the Final Award (Dkt. No. 89-1), Counterclaimants were found to have violated 24 the DMCA ( 17 U.S.C. §§ 1201 (a), 1201(b)(1)) and the Washington Consumer Protection Act 25 (RCW 19-86-020), and were found liable for breach of contract and tortious interference with a 26 contract in connection with their development, sale, and distribution of Defendants’ Cheat PRETRIAL ORDER Perkins Coie LLP 1 Software. The actions that form the basis of May’s counterclaim—including May’s surreptitious 2 attempts to reverse engineer Destiny 2 using reverse engineering tools provided and signed by 3 Phoenix Digital—arise from May’s development, sale, and distribution of Defendants’ Cheat 4 Software and Bungie’s subsequent investigation of May’s unlawful conduct. May’s counterclaim 5 is barred by the doctrine of unclean hands. 6 III. ADMITTED FACTS 7 The following facts are admitted by the parties: 8 1. Destiny 2 is a shared-world first-person shooter video game created and owned by 9 Bungie. 10 2. Destiny 2 was released in September 2017 and has an estimated player base of over 11 30 million players. 12 3. Bungie owns all rights, title, and interest in the copyrights to Destiny 2 and Destiny 13 2: Beyond Light, including U.S. copyright registrations for the computer software (Reg. Nos. TX 14 8-933-655 and TX 8-933-658) and audiovisual works (Reg. Nos. PA 2-282-670 and PA 2-28015 030). 16 4. Destiny 2 was first published on September 9, 2017. Bungie’s copyright 17 registration TX 8-933-655 was registered on February 9, 2021, and Bungie’s copyright registration 18 PA 2 -282-670 was registered on March 23, 2021. 19 5. Destiny 2: Beyond Light was first published on November 10, 2020. Bungie’s 20 copyright registration TX 8-933-658 was registered on February 9, 2021, and Bungie’s copyright 21 registration PA 2-280-030 was registered on February 10, 2021. 22 6. Schaefer, Green, and Conway formed and became equal 1/3 owners of Phoenix 23 Digital in 2012. 24 7. Schaefer, Green, and Conway each had full control and authority to manage 25 Phoenix Digital while they were members. — 26 — PRETRIAL ORDER Perkins Coie LLP 1 8. Schaefer personally controlled every aspect of the sale of cheat software, including 2 communicating with cheat software developers, deciding whether to sell a cheat, allocating profits 3 from sales, and deciding when to stop selling a cheat. 4 9. On or around December 17, 2019, Phoenix Digital began distributing the first 5 version of the Cheat Software with only the “Extra-Sensory Perception” (“ESP”) feature. 6 10. On or around December 23, 2019, Phoenix Digital began distributing a second full 7 version of the Cheat Software with new features, including “AIMBOT” and “One Position Kill” 8 (“OPK”). 9 11. The Cheat Software’s ESP feature allows users to see other Destiny 2 players and 10 non-player characters through solid walls by displaying a distinct box around the other players, 11 displaying the players’ names, and the distance between the cheating and non-cheating players. 12 12. The Cheat Software’s AIMBOT feature allows cheaters to automatically aim at 13 other Destiny 2 player and non-player characters with little to no input (i.e., movement of the 14 mouse and/or joystick) by the cheater. 15 13. The Cheat Software’s OPK feature allows cheaters to either respawn at or move 16 (teleport) to the same space in Destiny 2 so that the cheater’s abilities would be more effective at 17 defeating those opponents, accelerate the rate at which cheaters accumulate rewards and accolades. 18 14. May accepted Bungie’s Limited Software License Agreement (“LSLA”) in 19 October 2019 and the Bungie’s Privacy Policy that applies to his access to and use of Destiny 2, 20 and agreed to each subsequent version of Bungie’s LSLA in effect between October 2019 and May 21 2021. 22 15. May does not own U.S. copyright registrations for any files on his computer that 23 were allegedly accessed by Bungie. 24 16. During the course of this litigation, Bungie produced the document bearing 25 document production control number BUNGIE_WDWA_0000409. — 26 — PRETRIAL ORDER Perkins Coie LLP 1 17. During the course of this litigation, Bungie produced the document bearing 2 document production control number BUNGIE_WDWA_0000367. 3 IV. ISSUES OF LAW 4 A. Agreed Issues of Law 5 The following are the issues of law to be determined by the court: 6 1. Which findings of fact and law as found by Judge Cox in the Final Award (Dkt. 7 No. 89-1), as confirmed and entered by this Court, are binding in this proceeding? These findings 8 include but are not limited to the following: 9 a. Destiny 2 is Bungie’s copyrighted work. Final Award at 11. 10 b. Defendants obtained unauthorized access to the Destiny 2 software. Id. at 17 . 11 c. To operate, the Cheat Software necessarily creates unauthorized copies of 12 Destiny 2 code and unauthorized derivative works. Id. at 13 . 13 d. The cheat loader distributed by Defendants was designed to circumvent 14 protections of Destiny 2 by injecting code into the Destiny 2 program without 15 detection. Id. at 14 . 16 e. May connected reverse engineering tools to the Destiny 2 game engine in order 17 to reverse engineer Destiny 2 and develop the Cheat Software that was sold on 18 AimJunkies.com. May did so in concert with and for the benefit of the Phoenix 19 Digital Defendants, and was the agent of these Defendants. Id. at 12 . 20 f. Defendants’ violations of the DMCA anticircumventiuon statute were willful. 21 g. Defendants sold at least 1,316 copies of the Cheat Software. 22 h. May breached Bungie’s Limited Software License Agreement by reverse 23 engineering Destiny 2. 24 2. Does Bungie’s purported circumvention of May’s technological protection 25 measures by “misleading” May legally constitute circumvention as defined in 17 U.S.C. 26 § 1201(a)(3)(A)? PRETRIAL ORDER Perkins Coie LLP 1 3. Is Bungie entitled to its actual damages and any of Defendants’ profits from their 2 infringement not taken into account in computing actual damages under 17 U.S.C. § 504 ? 3 4. Is Bungie entitled to its requested permanent injunctive relief under 17 U.S.C. 4 § 502? 5 5. Is any party entitled to recover their reasonable attorneys’ fees as the “prevailing 6 party” under 17 U.S.C. § 505 ? 7 B. Defendants’ Proposed Issue of Law 8 6. Whether violation of the Bungie LSLA for use of “cheat” software constitutes 9 copyright infringement under Ninth Circuit law. 10 V. EXPERT WITNESSES 11 Bungie shall be limited to the following four expert witnesses, and each will or may testify 12 concerning the following issues: 13 1. Dr. Edward Kaiser, 550 106th Avenue NE, Suite 207, Bellevue, WA 98004-5088, 14 will testify as an expert witness concerning Bungie’s Destiny 2 software code, the Destiny 2 game 15 engine, the creation and operation of Defendants’ Cheat Software, users of Defendants’ Cheat 16 Software, complaints from non-cheating players about Defendants’ Cheat Software, and Bungie’s 17 harm, as is more particularly set forth in Bungie’s Rule 26(a)(2) disclosures, and as a fact witness 18 regarding Bungie’s purchase and operation of Defendants’ Cheat Software, and Bungie’s 19 intellectual property rights in Destiny 2. 20 2. Steven Guris, 134 Summer Crest Pl. SW, Marietta, GA 30060, will testify 21 concerning the operation and his analysis of Defendants’ cheat loader software and the harm to 22 Bungie caused by cheat software, as is more particularly set forth in Bungie’s Rule 26(a)(2) 23 disclosures and the written report prepared by Mr. Guris. 24 3. Drew E. Voth, 1111 3rd Avenue, Suite 2450, Seattle, WA 98101, will testify 25 concerning Defendants’ profits from sales of the Cheat Software and rebut the testimony of David — 26 — PRETRIAL ORDER Perkins Coie LLP 1 Schaefer regarding the value of Phoenix Digital, as is more particularly set forth in Bungie’s Rule 2 26(a)(2) disclosures and the written reports prepared by Mr. Voth. 3 4. Nate Buckmiller, Bungie’s Director of Financial Systems & Reporting, 550 106th 4 Avenue NE, Suite 207, Bellevue, WA 98004-5088, may testify (possible witness only) regarding 5 the significant negative effect of cheat software, including Defendants’ Cheat Software, on the 6 gameplay of Destiny 2 and the impact on player retention, as well as the harm caused by cheat 7 software, including Defendants’ Cheat Software, to Bungie. — 8 — 9 Defendants shall be limited to one expert witness, who will testify concerning the following 10 issues: 11 1. Brad A LaPorte, 331 Zenith Lane, Juno Beach, FL 33408, will testify as to the 12 opinions stated in his Expert Report served August 28, 2023 as well as the grounds and other bases 13 for those opinions. 14 VI. OTHER WITNESSES 15 The names and addresses of witnesses, other than experts, to be used by each party at the 16 time of trial and the general nature of the testimony of each are: 17 On behalf of Bungie: 18 1. David Schaefer, 5669 Snell Ave., #433, San Jose, California 95123, will testify, 19 including as the corporate representative of Phoenix Digital, concerning Defendants’ creation, 20 development, advertising, distribution, and sale of the Cheat Software, Defendants’ direct and 21 secondary infringement of Bungie’s copyrights in Destiny 2, Defendants’ revenue and profits from 22 the sale of the Cheat Software, Defendants’ spoliation of evidence in this matter, and other matters 23 pertinent in this action, including those set forth in his depositions. 24 2. Jordan Green, 2839 SW Dickinson Street, Portland, Oregon 97219, may testify 25 (possible witness only) concerning Defendants’ creation, development, advertising, and sale of the 26 Cheat Software, Defendants’ direct and secondary infringement of Bungie’s copyrights in Destiny PRETRIAL ORDER Perkins Coie LLP 1 2, Defendants’ revenue and profits from the sale of the Cheat Software, Defendants’ spoliation of 2 evidence in this matter, and other matters pertinent in this action, including those set forth in his 3 depositions. 4 3. Jeffrey Conway, 8837 W. Vernon, Phoenix, Arizona 85037, may testify (possible 5 witness only) concerning Defendants’ direct and secondary infringement of Bungie’s copyrights 6 in Destiny 2, Defendants’ revenue and profits from the sale of the Cheat Software, Defendants’ 7 spoliation of evidence in this matter, and other matters pertinent to this action, including those set 8 forth in his depositions. 9 4. James May, 2217 Polo Park Drive, Dayton, Ohio 45439, will testify concerning 10 Defendants’ creation, development, advertising, and sale of the Cheat Software, Defendants’ direct 11 and secondary infringement of Bungie’s copyrights in Destiny 2, Defendants’ revenue and profits 12 from the sale of the Cheat Software, Mr. May’s computer and files allegedly accessed by Bungie, 13 Mr. May’s consent to Bungie’s purported access to his computer, Defendants’ spoliation of 14 evidence in this matter, and other matters pertinent to this action, including those set forth in his 15 depositions. 16 5. Jason Hahn, 1745 Juniper Hammock Street, Winter Garden, Florida 34787-2215, 17 may testify (possible witness only, via deposition), regarding Defendants’ business, documents he 18 produced in response to Bungie’s subpoena to him, and other matters pertinent to this action, 19 including those set forth in his deposition. 20 6. Ronita Murray, 7700 Eastport Parkway, La Vista, Nebraska 98128, may testify 21 (possible witness only) regarding documents produced by PayPal, Inc. in response to Bungie’s 22 subpoena to PayPal, Inc. 23 7. Stripe Inc. representative, physical address unknown, may testify (possible witness 24 only) regarding documents produced by Stripe Inc. in response to Bungie’s subpoena to Stripe Inc. 25 Bungie may also call any witness identified on Defendants’ witness list. — 26 — PRETRIAL ORDER Perkins Coie LLP 1 Bungie reserves the right to call additional witnesses who may not be identified here for 2 purposes of rebuttal or impeachment. — 3 — 4 On behalf of Defendants: 5 1. David Schaefer, c/o Philip P. Mann, Mann Law Group PLLC, 403 Madison Ave. 6 N. Ste. 240, Bainbridge Island, WA 98110, will testify as to the operation of Phoenix Digital 7 including its business model. He will deny the various unfounded accusations made by Bungie in 8 this case, including but not limited to Bungie’s unfounded accusations that Phoenix Digital 9 “copied” any copyrighted materials of Bungie and/or infringed Bungie’s trademarks. He will 10 further testify as to how Bungie violated the Aimjunkies/Phoenix Digital terms of service and 11 caused harm to Phoenix Digital. Mr. Schaefer will also testify as to all accusations that may be 12 made against him and/or Phoenix Digital at trial by Bungie. 13 2. James May, c/o Philip P. Mann, Mann Law Group PLLC, 403 Madison Ave. N. 14 Ste. 240, Bainbridge Island, WA 98110, will testify that he is not and has never been a part of 15 Phoenix Digital and had nothing to do with the alleged, “cheat” software that is the subject matter 16 of this lawsuit, including, but not limited to, the creation, development and/or distribution of the 17 software. Mr. May will testify that he has never received any of the proceeds from distribution or 18 sale of the subject software. Mr. May will deny the various unfounded accusations made by Bungie 19 in this case, including but not limited to Bungie’s unfounded accusations that he helped develop 20 or otherwise “created” the subject software. Phoenix Digital “copied” any copyrighted materials 21 of Bungie and/or infringed Bungie’s trademarks. He will further testify as to how Bungie, without 22 his authorization, unlawfully accessed his private computer files and caused harm to him. Mr. May 23 will also testify as to all accusations that may be made against him at trial by Bungie. 24 3. Jordan Green, c/o Philip P. Mann, Mann Law Group PLLC, 403 Madison Ave. N. 25 Ste. 240, Bainbridge Island, WA 98110, may testify (possible witness only) as to the operation of 26 Phoenix Digital Group including its business model. He will deny the various unfounded PRETRIAL ORDER Perkins Coie LLP 1 accusations made by Bungie in this case, including but not limited to Bungie’s unfounded 2 accusations that Phoenix Digital “copied” any copyrighted materials of Bungie and/or infringed 3 Bungie’s trademarks. He may further testify as to how Bungie violated the Aimjunkies/Phoenix 4 Digital terms of service and caused harm to Phoenix Digital. Mr. Green may also testify as to all 5 accusations that may be made against him and/or Phoenix Digital at trial by Bungie. 6 4. Jeffrey Conway, c/o Philip P. Mann, Mann Law Group PLLC, 403 Madison Ave. 7 N. Ste. 240, Bainbridge Island, WA 98110, may testify (possible witness only) as to the operation 8 of Phoenix Digital Group including its business model. He will deny the various unfounded 9 accusations made by Bungie in this case, including but not limited to Bungie’s unfounded 10 accusations that Phoenix Digital “copied” any copyrighted materials of Bungie and/or infringed 11 Bungie’s trademarks. He may further testify as to how Bungie violated the Aimjunkies/Phoenix 12 Digital terms of service and caused harm to Phoenix Digital. Mr. Conway may also testify as to 13 all accusations that may be made against him and/or Phoenix Digital at trial by Bungie. 14 5. Donald McGowan, c/o William Rava, Perkins Coie LLP, 1201 Third Ave., Suite 15 4900, Seattle, WA 98101, will testify as to public statements he has made on behalf of Bungie 16 concerning Bungie’s desire and efforts to combat “cheating” in Destiny 2. 17 6. John Doe,2 550 106th Avenue NE, Suite 207, Bellevue, WA 98004, will testify as 18 to his acquisition of software from the “Aimjunkies” website, including but not limited to his use 19 of an assumed name in doing so and his agreement to the Aimjunkies/Phoenix Digital Terms of 20 Service in so doing. John Doe will also testify as to the circumstances under which he was 21 instructed or otherwise induced to perform these acts on behalf of Bungie. 22 7. Dr. Edward Kaiser (will testify) (Adverse Witness) 550 106th Avenue NE, Suite 23 207, Bellevue, WA 98004-5088. Dr. Kaiser will testify that he never saw, used, analyzed or 24 otherwise inspected the software at issue in this action. — 25 — 2 “John Doe” refers to the individual whose identifying information is protected from disclosure pursuant to 26 the Court’s May 2, 2023 Order granting Bungie’s motion for protective order. Dkt. No. 126. The continued protection of John Doe’s identifying information is the subject of Bungie’s Motion in Limine. Dkt. No. 204. PRETRIAL ORDER Perkins Coie LLP 1 8. Mr. Steven Guris (possible witness only) (Adverse Witness) 550 106th Avenue NE, 2 Suite 207, Bellevue, WA 98004-5088. Mr. Guris may testify that he never saw, used, analyzed or 3 otherwise inspected the software at issue in this action. 4 Defendants may also call any witness identified on Plaintiff’s Witness list. 5 Defendants reserve the right to call additional witnesses who may not be identified here for 6 purposes of rebuttal or impeachment. 7 VII. EXHIBITS 8 The parties shall file an amended exhibit list by Wednesday, November 29, 2023, by Noon. 9 Bungie’s exhibit list, including Defendants’ stipulations, and authenticity and/or 10 evidentiary objections are attached hereto as Appendix A. 11 Defendants’ exhibit list, including Bungie’s stipulations, and authenticity and/or 12 evidentiary objections are attached hereto as Appendix B. 13 Bungie’s deposition designations are attached as Appendix C. 14 VIII. ACTION BY COURT 15 (a) This case is scheduled for trial before a jury on December 4, 2023, at 9:00 a.m. 16 (b) Trial briefs shall be submitted to the Court on or before November 9, 2023. 17 (c) Jury instructions requested by either party shall be submitted to the Court on or 18 before November 9, 2023. Suggested questions of either party to be asked of the jury by the Court 19 on voir dire shall be submitted to the Court on or before November 9, 2023. — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — PRETRIAL ORDER Perkins Coie LLP 1 This order has been approved by the parties as evidenced by the signatures of their counsel. 2 This order shall control the subsequent course of the action unless modified by a subsequent order. 3 This order shall not be amended except by order of the Court pursuant to agreement of the parties 4 or to prevent manifest injustice. 5 IT IS SO ORDERED. 6 Dated this 17th day of November, 2023. — 7 — A — 8 — Thomas S. Zilly — 9 — United States District Judge — 10 — — 11 — 12 Dated: November 9, 2023 — 13 — By: s/Jacob P. Dini By: s/ Philip P. Mann William C. Rava, Bar No. 29948 Philip P. Mann, WSBA No. 28860 14 Christian W. Marcelo, Bar No. 51193 Mann Law Group PLLC Jacob P. Dini, Bar No. 54115 403 Madison Ave., Ste 240 15 Perkins Coie LLP Bainbridge Island, Washington 98110 1201 Third Avenue, Suite 4900 Phone (206) 436-0900 16 Seattle, Washington 98101-3099 phil@mannlawgroup.com Telephone: +1.206.359.8000 17 Facsimile: +1.206.359.9000 Attorneys for Defendants WRava@perkinscoie.com 18 CMarcelo@perkinscoie.com JDini@perkinscoie.com — 19 — Attorneys for Plaintiff Bungie, Inc. — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — PRETRIAL ORDER Perkins Coie LLP