Interplay fires back

Post by **King of Creation** » Wed Nov 09, 2011 3:16 am

[ Company -> Update ] - More info on <a href="http://fallout.wikia.com/wiki/Bethesda v. Interplay">Company: Bethesda v. Interplay</a>

We <a href="../../forums/viewtopic.php?t=25791">reported yesterday</a> that Bethesda had filed a motion in limine in an attempt to suppress evidence that would support Interplay. Bethesda's motion also compelled Interplay to prove that they had satisfied the original contract, but then went on to argue that Interplay should be barred at trial from arguing that they had satisfied the original contract. I'm no lawyer, but I'm pretty sure that's stupid.
Now Interplay has fired back, filing their own motion in limine in order to try and stop Bethesda from producing new evidence in the form of an expert witness that was not at discovery. The expert witness is Thomas Bidaux, former Director of Product Development at NCSoft Europe and now a founding partner at consulting firm ICO Partners. Interplay's lawyer, Mr. Gersh, has attempted to work out an arrangement to depose Bidaux, but Bethesda has been less that cooperative. Here is the meat of the motion:
<blockquote>
Defendant/Counter-Plaintiff Interplay Ente1iainment Corp. ("Interplay") respectfully moves this Court for an order to exclude Bethesda Softworks LLC's ("BSW") expe1i, Thomas Bidaux, from testifying at trial; or in the alternative, for an order precluding him from testifying to opinions concerning the meaning of contract terms contained in the Trademark License Agreement ("TLA") or performance thereof. As set forth below, BSW identifies opinion testimony in the Joint Pre-Trial Report, that must be excluded because neither the opinion nor its underlying basis is contained in Mr. Bidaux's report, as required by Federal Rules of Civil Procedure ("FRCP") Rule 26(a)(2). Mr. Bidaux's testimony also should be excluded because his Rule 26(a)(2) report lists only opinions concerning development of Massively Multiplayer Online Games (MMOG) generally, but do not relate to the requirements of the TLA, the terms of which BSW contends are obvious and unambiguous. Finally, BSW refused to provide dates for the depositions of certain of its officers and employees so that Mr. Bidaux's deposition could be coordinated with that travel. BSW also refused to permit Interplay to take Mr. Bidaux's deposition via telephone despite Interplay's reasonable requests. For these reasons, the Court should issue an order precluding Mr. Bidaux's testimony at trial.
</blockquote>
Their number 1 reason for this is pretty straight forward:
<blockquote>
BSW should not be permitted to introduce any expert opinions at trial that were not previously identified during discovery. FRCP Rule 26(a)(2) requires not only that BSW disclose the identity of any expert that it may use at trial, but also that BSW must produce a written report concerning the proposed testimony. Among other things, the report must contain:
(1) a complete statement of all opinions the witness will express and the basis and reasons for them; and,
(2) the facts or data considered by the witness in fonning them.
(See, FRCP 26(a)(2(B)(i-ii).)

Rule 37(c) ofthe Federal Rules of Civil Procedure clearly authorize a court to preclude the introduction of evidence not disclosed in violation ofFRCP Rule 26(a). Rule 37(c) provides in relevant part:
(1) Failure to Disclose or Supplement.'lf a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
(FRCP Rule 37(c) (1), emphasis added.)
</blockquote>
One of the other main reasons Interplay's lawyer wants Bidaux barred from the witness stand is because Bethesda "refused to permit his deposition," according to the motion. Interplay's attorney is very unhappy with Bethesda's legal team. They have apparently stonewalled him and refused to confirm dates, times, etc. and their attempt to insert new evidence in the form of Thomas Bidaux into the jury trial was apparently the last straw for Gersh. This is my favorite part of a letter from Gersh to Bethesda's attorney:
<blockquote>
I have spoken with our client [Interplay] concerning the proposed dates for the deposition of your supposed expert in Washington D.C. [Editor's note: Interplay and their lawyer are based in California] and it is not going to be feasible for us to travel to Washington D.C. for at most a 3 hour deposition, especially given the fact that you have refused to propose any alternative dates for the three officers of Bethesda around the same time or even close. Interestingly, it took you two weeks to even let me know that none of the dates I gave you worked for your client. It is inconceivable that this simple query about available dates could not have been answered in 48 hours. It is even more inconceivable that you have not even proposed alternative dates, even if a date conflicted with my schedule, which had I known weeks ago I might have found a way to move things around. But you delayed again to respond making it impossible for me to do anything. This has been going on since July as I recall and you have just put up road block after road block, even knowingly trying to force me to travel and take deposition on the Jewish holidays.
I am not going to debate this with you any further. It is obvious that we are going to have to now bring this to the Court's attention.
</blockquote>
Bethesda's lawyers refused, by the way, to allow their expert witness to conduct a telephone deposition rather than have Interplay's lawyer fly out to Washington D.C. when they knew he could not. Interplay's lawyer filed the motion in limine to try and stop the introduction of this new evidence, as the jury trial is now only 4 weeks away - hardly enough time to prepare in the legal world. Gersh also suggests in Interplay's motion that Bethesda be sanctioned by the court for its "discovery conduct."
Duck and Cover will be sure to keep you up to date as we get closer to the trial by jury, so stay tuned.

SenisterDenister · Post by **SenisterDenister** » Wed Nov 09, 2011 9:50 pm

This is certainly getting interesting. It would be hysterical if Bethesda loses everything at the end of this, of course that still seems like a shot in the dark, to me.

Post by **King of Creation** » Thu Nov 10, 2011 1:57 am

I'm not really sure how it would work, but from what people have been saying it seems that if the judge/jury finds that Bethesda signed the original contract in bad faith, then the contract becomes void and all rights revert to Interplay.

Cimmerian Nights · Post by **Cimmerian Nights** » Thu Nov 10, 2011 6:24 am

Of course they did it in bad faith, but you would've thought, being part of a big media conglomerate, they'd have the acumen and resources to do it properly and close the door on Herve forever.

I love this, especially since nobody who had anything to do with making Fallout what it was works for either company.

It's like the natives fighting over the Coke bottle in the Gods Must Be Crazy, not even knowing what it is or where it came from.

If Bethesda had invested the $5M it cost to buy the IP, plus all the legal fees, they couldn't develop a setting in keeping with the shallow fucking McRPGs they are known for?
Fucking retards.

orionquest · Post by **orionquest** » Fri Nov 11, 2011 7:29 pm

Actually, Fallout 1/2's Chris Taylor has been working on Interplay's Fallout MMO since day 1

Even Jason Anderson was working with Interplay before leaving.

All of Interplay management from Fallout 1 days is gone but guess who might be returning?

Tim Cain said he may be working for a new company in the spring of 2012 and he has been dying to work on an MMO so why not the Fallout MMO.

Interplay has damning evidence against Bethesda providing Bath Faith contract nullifying dealings.

Bethesda also might be secretly developing a Fallout MMO which would also break the contract since they are not allowed to start on that unless they win the court case.

Their lawyer did not flat out deny Bethesda's involvement with making a Fallout MMO.

The judge flat out asked him and first response was: No

He then followed it up with: "I don't think so". Then said "I don't know"

Well, that's a roundabout way of admitting that either he's an uniformed idiot, that Bethesda is keeping things even from him , or that they have already gravely violated the contract by illegally developing the MMO while making Interplay think that they had the right to do so.

Bethesda mere argument of only licensing the name Fallout already violates the contract since the stipulation for Interplay being allowed to publish Fallout MMO requires adherence to the Fallout IP game world.

The mere fact that they would argue for a Fallout title trademark only is 100% bad faith contracting indicating they never intended to approve an Interplay published Fallout MMO regardless of Interplay's meeting of requirements which Bethesda is trying to prevent Interplay from entering evidence proving such requirements have been met.

If Bethesda is stupid enough to let this go to Trial, they are going to lose the entire license and be found guilty of sabotaging Interplay which will allow for up to treble damages from a total of 600 million revenue franchise based on a minimum 70 million $ of royalties going to Interplay.

Bethesda's legal arguing and shanannigans has left them open to a massive failure and loss of up 210 million dollars.

The-Master · Post by **The-Master** » Fri Nov 11, 2011 8:49 pm

it was jason anderson.

i think if bethesda was making a fallout mmo before the april 4 cut off that would be bad faith. If it was after then it might just be a thing that the judge says .. 'well,, its on you bethesda if you want to risk it'

however the bethesda exee are not making one. so it sure would be interesting if they were.

orionquest · Post by **orionquest** » Fri Nov 11, 2011 8:54 pm

The-Master wrote:it was jason anderson.

i think if bethesda was making a fallout mmo before the april 4 cut off that would be bad faith. If it was after then it might just be a thing that the judge says .. 'well,, its on you bethesda if you want to risk it'

however the bethesda exee are not making one. so it sure would be interesting if they were.

I see it differently. Bethesda making a Fallout MMO before the lawsuit/contract is adjudicated in their favor is bad faith and proves their bad faith intent to never allow Interplay to make the MMO from basically day one.

Bethesda secretly making the MMO is basically misleading Interplay into thinking they had an agreement.

Clear as day when you argue it from that position.

Interplay fires back

Interplay fires back

Interplay still has original Fallout developers!