Bethesda v Interplay trial court transcript

The following is a transcript from the trial of the Bethesda Softworks LLC v. Interplay Entertainment Corporation court case.

The parties in the transcript are
 * For the Court
 * The Court: Justice Deborah K. Chasanow of the US District court, Maryland
 * Also Present: Court Reporter Sharon O'Neill
 * For the Plaintiff (Bethesda Softworks)
 * Mr Stahl: Howard Stahl of Fried, Frank, Harris, Shriver & Jacobson
 * Mr LoBue: Joe LoBue of Fried, Frank, Harris, Shriver & Jacobson
 * Also Present: Aaron Tucker of Fried, Frank, Harris, Shriver & Jacobson
 * For the Defendant (Interplay Entertainment))
 * Mr Gersh: Jeffrey Gersh of Gersh Derby
 * Mr Caen: Herve Caen, CEO of Interplay Entertainment
 * Also Present: Geofery Harvey of Gersh Derby

Pages 71 - 89
Mr Gersh: I think I've got nine, but yes. The Court: okay. Each of them, at beginning page, does have a revision has other day that predates April 4 of 2009. This is the only part of the wiki mission to look at. Mr Gersh: know your Honour I'll go through all 2500 pages what I wanted to do was give you a representative sample and I believe that if Mr Stahl will give me a look at what is referring to, I think those are like the second pages of some particular documents. The Court: that's what I was asking okay. Then, at the very least, you'll be listening to explain how these pages existed or what they represent. Are there sections or – you know, that that – that time prepared or last-revised legent doesn't appear? He said it appeared on every page, which is what has become misleading. Mr Gersh: i – i – The Court: I don't know if that means of paint on the computer that doesn't translate to 8.5 x 11 page. Mr Gersh: let me – if I – Mr Stahl: your honour, if I may be heard one moment? The Court: and here -- I mean this electronic discovery, I gather, and I don't know how it was treated by parties during -- Mr Stahl: we had printed copies The Court: Huh? Mr Stahl: We had a printed copy Mr Gersh: They had -- Mr Stahl: TIFs, they're called. Your honour let me just try to give you an example of what's in this document. The Court: Okay, well, we'll get everybody out. Um Hum. Mr Stahl: if you -- if you look at -- and I don't know where is its on the excerpts, and I apologize, that Mr Gersh has given to you, that counsel for Interplay has. If you look at the document Bates stamped IPE 007454 it has a heading at the top of it just like the other ones that had - some of them had Bates. This one's called Text Input Window. It's got a date on it. But then, as you move on to like the next page, Factual views of the Damned, which is on 07456, there's no date at all on that. If -- and I don't think that's a subheading. I just think its another piece that's in this wiki. If you move to read 007459 its called The Living Oak. Its got some dates on it, but as you proceed on with - what you don't know is whether, for example, Your Honour, that the page was actually in a wiki on that date. It may have been added. It may have been deleted and put back in at a later date. The mere fact that we're looking at a document that we know is dated Feburary the 11th - thats the date it was printed, that's the date, I'm assuming, the disc was made that was sent to us or the TIFs were made were sent to us - doesn't prove at all what was actually in this wiki as of April the 4th, 2009, leaving aside the captions at the top of it. And this witness said under oath he doesn't know. Mr Gersh: Your Honour, I can scroll - we can scroll through the 2500 pages. I'm happy to do that. I was hoping we wouldn't have to. But we can go through them and show where the dates are and what they represent and have this witness explain every one of them. We'll do that. Mr. Stahl: That's not my objection, Your Honour. The Court: Well, we've got several problems here. When was this document produced during discovery? Mr Gersh: Oh it was produced -- The Court: And was it produced electronically or - Mr Gersh: I believe hard copy and subsequently a disc also. We did produce electronically as a TIF file, and we gave them -- we didn't - we didn't send you the pages. Mr LoBue: No, you didn't send us the Wiki. The Court: What? Mr Gersh: We actually - two things, Your Honour, we actually gave them access to the wiki electronically. Okay? That they are given a password and code for, to actually go in and look at it - The Court: Um hum. Mr Gersh: - of which I actually have the email concerning that. And We actually gave them TIF files concerning everything that is on these pages. Mr Stahl: Your Honour, we didn't get the pass code to the wiki. Mr Gersh: Baloney. Mr Stahl: Until after the lose of Discovery. We had the photographs, if you will, the images of these pages, but that's all we had. Mr Gersh: Your Honour, there's a - well, maybe I do. We gave Mr Stahl access to the Wiki- I think it was August 2011, a pass code and a password and whatnot, for them to look at it because they - The Court: They don't disagree they got it, but it was not during discovery. Mr Gersh: They had asked me for it. We got it. We produced it. As a matter of fact, Your Honour, back when Mr Marbury was involved in the case, he asked for it. Okay? We told him he could have it. Never heard again. When they asked for it, we got it. We gave it to them. Okay? So they got it both - had access to actually work within the Wiki. Never once complained about it. Actually got the TIF files that are here for you as well. And as for what they are, I'm happy to go through through the pages and have Mr Caen explain, you know, what they are by date and what they represent. I was hoping to avoid that and simply go with a representative example of some of the documents to try and move this along, but if we have to go through all of them, I - we can do that. The Court: All of this is a design document, is that right? Mr Gersh: All of this is a part of the design concept. It discusses, you know, the game. All of the stuff that goes in to help full-scale development of this game. What be believe is part of full scale development. It's more than just design. If you look at the very, very first page, where it talks about the core design, it mentions everything that's a part of it. The Court: Um hum. Mr Gersh: That's the first - the table of contents, so to speak of the - Fallout-On-Line, of what this wiki represents. And then it goes through this and explain, you know, exactly what these different things are and what goes into this - or what goes into it and what went into the development of this game as of April 4 2009. So there's thousands of pages of information, of designs, of characters, of effects, how these effects are going to work, what's going to happen. This isn't something that's created overnight, and I think Mr Caen has indicated that he's gathered this information, had the company gather this information for everything prior to April 4 2009. Now while Mr Caeon, you know, said that they're on every page, I think, you know, if you look at them what the reality is, is they're on the beginning of certain pages for certain things, Like you go three things in there's a Warrior, and it talks about the revision and it's got all behind it. Well if this page was revised September 15 '08 we're not talking about information behind it that was created after the fact. This entire section on the Warrior was done as of September 15, '08. I can go through that with Mr Caen Syker, same thing. March of '09. Clones, January 20th of '09. And there's - its multiple - this is an evolving, living, breathing document, and its all we did was gather the information that was alive up to that date, and that's what Mr Caen has testified to. This doesn't include information after the fact. Could - you know, in the 2500 pages, is there a page or two or three or five or ten that don't have one of these dates on it? There may be. You know, I tried to look through them to make sure that the sections had dates on them. I believe that they did, and I believe that what Mr. Stahl is referring to are like second and third and fourth pages related to a particular thing. Like if you looked at Combat, for argument's sake, under combat, it talks about the date it was created. And if you go further in, there are subheadings of different things. It describes Physical contact, damage to avoid, targeting, aggro system - well, that's actually - which is part of combat. But thats a separate one in the end of itself which has a date on it. That's what it all is, thats all reflective of everything pre April 4, 2009. Mr Stahl: Your Honour, what we got wasorignally? we never got the password to get into the iwki until after the discovery closed, but it wouldn't have done us much good because we would have been looking at it as of August 2011. The Court: Well, except what he's saying is that if you get into the wiki, you can ask it to go backward in time and to display the material that was there at a prior iteration. That's what my understanding is this witness has just said and has directed to be done. Now Mr Gersh, was I wrong about that? Mr Gersh: No, you are correct, and if we had internet access in the courtroom, I could put you on the wiki right now and do the exact same thing, and you would see the same documents. We Froze that wiki this access to the password,a nd you would see the stuff that's on that wiki. And I understand we couldn't get internet access here, so we weren't trying to do that, but we froze that wiki for the point in time, and it's all still there. Its the same thing. All we've done is print off the pages and give the court the actual pages. But I could put you in that wiki right now, you could wander around through it. You could search if for a date prior to April of '09 - you could search for a date post of '09. I don't believe it's there. I searched, just myself, last night to represent to the court what happened before '07. There's nothing there. I mean, this is what it is. This is what they put together for the relevant point in time. Mr Stahl: Your honour, there isn't a shred of evidence on this document, which is hearsay on its face, as to when it was prepared, what was in it, what was out of it, and I read you this witness testimony from his deposition. He said there were multiple iterations. Now we are talking about the same very thing - The Court: All Right. Mr Stalh: - he didn't know which one they were. The Court: Now I understand. Mr Gersh: There - there are multiple iterations because its a living, breathing document, okay, and it does change. And there may be things that are post-April 4. We didn't produce and of that for the Court to consider because we have this date that everybody's looking at. So we didn't say to you, yeah, well, there's a whole bunch of other stuff, Judge. We can show you where the game is today, and we can show you where the wiki is today, but boy that's going to raise, you know, a major argument because they're going to say that's not relevant to what happened as of April 4. So therefore, we limited this to the time period in question, April 4 '09, and that's what it was. And that's why when you look at the documents which you, yourself, saw it from the top of the document, this is a revision as of a certain date. That's the revision. Might there be revisions after? Sure. The Court: And when did you print out what you contend is the version as it existed as of April of 2009, and you produced that in hard copy to the plaintiff? Mr Gersh: It appears February 1, '1. From the top left-hand corner, that's the printing date Mr Stahl; And, your honour, this problem is exacerbated by the problem we had - The Court: And was that the document you had when you were taking the deposition of Mr Caen? Mr Stahl: Yes, Your Honour. That's the document. The Court: And that's what you showed? Mr Stahl: We didn't have the wiki at all. We did not have it all, but let me raise one other issue Your Honour. The Court: Um Hum Mr Stahl: You recall the deposition - the Interrogagorty problems we've had about the pre- and post-April 4 '09 information? The Court: Um Hum Mr Stahl: Here's another classic example of it. We're being told, although there's not a shred of evidence to support it, that this is frozen as of April 4, '09, even though its dated Feburary 11. The Court: I understand. Yeah. Mr Stahl: If it was - if there were changes made after '011, as he said there were, with - Masthead had access to it then stopped - The Court: Um Hum Mr Stahl: Then we don't have any of that. So we don't have any - they didn't give us anything. Now they're saying post-April, '09, which they were obligated to give us. The Court: Right - Well that's a whole different problem depending on how we resolve the lawsuit in terms of what you're entitled to see and understand, but Mr Stahl: But this goes to Authenticity The Court: I'm trying to deal with one piece at a time. I- you requested under rule 34 documents that evidence certain things I gather? Mr Stahl: Absolutely The Court: And, Mr Gersh, you agree that this is responsive to a document request? Mr Gersh: This is responsive to a document request. The Court: Okay. But in producing it you printed it out and gave it to them in Feburary 2011. Did the parties discuss how they - how you were going to provide electronically stored information? Mr Gersh:For here at trial? The Court: No, During Discovery, under rule 34. Mr Gersh: No. No. The Court: You had no agreement as to how because thats what this is. Its electronically stored information. Mr Gersh: We had - we had no agreement. We had no discussion, Your Honour, and we've had no discussion about any concerns about - The Court: Under Rule 34, a party must produce documents as they are kept in the usual course of business or must organize and lebel them to correspond with the categories of the request. If the request does not specify a form for producing electronically stored information, a party must produce it in a form, or forms, which it is ordinarily maintained or in a reasonably usable form or forms. Mr Gersh: So we cant't - we can't produce the Internet in the form in which its maintained - its on the Internet. So what we did was - The Court: When you produced this printout, do you explain it to the plaintiff? Mr Gersh: Oh, absolutely. We've had numerous discussions about what this document is and never once had an objection that it wasn't enough information or produced improperly. You know, when we were able to get access to it, we gave them access to it. As I told you previously, Mr Marbury was offered access from the very, very, very first day we were here on the preliminary injunction to talk about this. When they asked for it, we got a password. We set it up in a secure environment so they could get into it and deal with it. Never once heard another word about it. When we produced this in hard copy, never once heard a word. Hey, this is a problem. We don't want it this way. We want it - we want something else from you. And, in addition, I'll point out to the Court that we offered consel the opportunity to look at the game in development in a secure environment. Never once took us up on that. So I can't - I can't take this internet document and produce that wiki and say - The Court: This is an Internet Document? Mr Gersh: Yes, this is a document that is basically an internet document The Court: Internet Mr Gersh: Internet. Its out - its on the internet that everybody can have access to. Not Intranet. Mr Stahl: That's not true Your Honour. This is a document through the server of your company. Mr Gersh: I'm sorry? Mr Stahl: We access it through the Internet. Mr Gersh: They access the document through the Inter - oh I'm sort. It is - it is - The Court: Bu You're - but when you do it, you are basically logging onto a dedicated server that is at Interplay? Mr Gersh: That's Correct. That's correct. I misspoke. Its on a server, okay, that's accessed through the internet for people to work on it from whenever. Yes, its not in the cloud, I misspoke. Okay Mr Stahl: We could have seen it, Your Honour, if you look at the 30(b) 6 deposition where, again, Mr Caen was the witness, we asked fro the game. We, of course - as of April of 2009. We never got it. Not a line of software, not a piece of code. We asked for these types of documents, design documents. I'll read you again from the deposition as to what this - The Court: When was this taken? Mr Stahl: October the 8th, 2010 Your Honour. The Court: Okay, go ahead. Mr Stahl: Your Honour, when we asked him in this deposition, that same one, about this Wiki, for example, it was similar to the testimony I read before, lots of versions, he didn't know, et cetra, there's a question - this is on page 104 -. "Okay. So the Wiki's the blueprint, and then there's some storage device somewhere that holds the actual game? "Answer: Correct "Are there any elements of the game that can be played on the wiki? "No "And when did that become into existence? That was - when the database was created? "I don't know, its a database" That's what this witness said under oath. This wiki, a  database, I don't know when it was created. And we have a copy of the document, he doesn't know when it was created, and its the very document we're now referring to, I think.  And I've just read what he said under oath. Mr Gersh: Your Honour - The Court: Um Hum. Mr Gersh: - Sitting there in a vacuum, not looking at a document, he may not know when it was created, I mean it doesn't necessarily make sense to know when - and - in addition, there's multiple parts to this.  It's not - it's not any one document created.  This is not like when you draft this agreement tat you signed, or when you read this agreement that you signed? This is a living, breathing document that moves. So to say I don't know when it was created, in a vacuum The Court: Um Hum Mr Gersh: - Is a perfectly reasonable response to the question when you'd have to look at the document to say, okay, the - the combat portion of the document was - portion of it was done on January 15, '09. How do I know that? I look at the wiki, and the wiki tells me when this was created. The - the Classes, when it was created I - when where the classes created? I don't know. Do you need something to look at? Yeah. If I look at this wiki I can tell you when its created. For the witness to have answered "I don't know" to that general of a question, I don't find inappropriate at all. He wouldn't know. There's no way that anybody could know with the amount of information. We provided you with 2500 pages of documents concerning this Wiki. How is he supposed to know, without looking at the documents, when something specifically was done? Its - its absurd to think that he could. The Court: Is this the only document that you provided in discovery evidencing its development? Mr Gersh: No. The Court: What other documents other than - I don't want - Memorandum of Understanding - I'm sure you'll get to, but what other documents did you provide? Mr Gersh:I believe we're looking at Exhibits 40 - Exhibit 48 would be screen shots, art and design. Exhibit 49, pre-April 4 Fallout MMOG art and design. Same for Exhibit 50, I believe. I got to look at the document. There's a video of the Fallout-on-line that was given early on in the case to show what Mr Caen actually actually saw that was developed when he was in Bulgraia. That was given away early on in the car. It was provided here for Mr Marbury as part of the original - The Court: Is that your Document 45 on this list? Mr Gersh: Its our Document 45. 45, yes, there's also - if you're talking pre April '09, pre April '09 there is - that's some of it. Then there's also - there's post April '09 documents that - Mr. Stahl just said we didn't give him information concerning all of that. Not true. Going from Exhibits 63 through 67 - I'm sorry. 61 through 67 are all documents we gave conceding environmental concepts, textures, modelling, 3D art, screen shots, characters, weapons, et cetera, which we have provided. I think I had mentioned 45. 46 is design art documents. 45 was the - was the video, the 90 second video showing exactly what had been done. As a matter of fact, this game was - was in development, actually something somebody could play, and Mr Caen can testify exactly as to what he personally did, you know, what he - he personally played this and was involved with it. The Court: Um Hum Mr Gersh: Plus the Wiki Mr Stahl: Your Honour, as to each and every one of those documents, most of them are Masthead documents. They are complete hearsay. There's noone here from Masthead that's going to testify to it independent of your honour's ruling. The Court: Um Hum Mr Stahl: We're going to object to every one of them on the - largely on the The Court: I was just trying to find out where we might have some discovery problems, but there are no other Interplay created documents? Mr Gersh: Oh no, no, no, no, no. Not at all. These documents I've mentioned, other than the - the video was taken by Interplay. Okay, the - all of these other documents - The Court: The Video was taken by Interplay? Mr Gersh: Yeah. Herve Caen personally took - shot the video of the game that's being produced. The Court: All right. Well, we haven't gotten to it, but I'm trying to figure - Mr Gersh: Okay. But the - but - Mr Stahl: let me correct that, if I might. The testimony is going to be he pushed a button on a computer, he says, in Masthead's studio in Bulgaria, and this is where this 90-second clip came from? The Court: Okay. All right. I'm - Mr Stahl: He didn't take it at all. The Court: - getting ahead of my place there Mr Gersh: The - The The Court: All right, I have - what I have here is discovery problem, first, and an evidentiary problem second