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Bethesda ask questions and demands admissions

Ausir November 14, 2009 User blog:Ausir
Bethesda vs Interplay

Bethesda and Interplay are in dispute again. This time over what the pre-hearing discovery regarding the Bethesda v. Interplay case over Fallout franchise rights, that will take place on Monday, November 16, should be about. As before, we have obtained the court filings regarding that.

Counsel, however, are currently in a disagreement regarding whether the pre-hearing discovery should include interrogatories and requests for admission (which the plaintiff has served on the defendant) or whether it should only include document production and depositions (which is the defendant's position).

The lawyers of both parties want to meet with the judge to discuss this issue. If Bethesda gets their way, these are the interrogatory questions that Interplay will be told to answer:

INTERROGATORY NO. 1:
Identify each person, other than a person intended to be called as an expert witness at the Preliminary Injunction hearing, having discoverable information and state the subject matter of the information possessed by that person.
INTERROGATORY NO. 2:
Identify each person whom you expect to call as an expert witness at the Preliminary Injunction hearing, state the subject matter on which the expert is expected to testify, state the substance of the findings and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and, with respect to an expert whose findings and opinions were acquired in anticipation of litigation or for trial, summarize the qualifications of the expert, state the terms of the expert’s compensation, and attach to your answers any available list of publications written by the expert and any written report made by the expert concerning the expert’s findings and opinions.
INTERROGATORY NO. 3:
Identify all steps taken by Interplay, prior to April 4, 2009, to “secure[ ] financing for the
FALLOUT MMOG in an amount no less than US$30,000,000.”
INTERROGATORY NO. 4:
Identify any and all facts that support your contention that Interplay “substantially satisfied” the “minimum financing” requirement of the TLA on or prior to April 4, 2009.
INTERROGATORY NO. 5:
Identify all steps taken by Interplay, prior to April 4, 2009, to commence “full-scale development of the FALLOUT MMOG.”
INTERROGATORY NO. 6: Identify any and all facts that support your contention that Interplay “substantially satisfied” the “full-scale development” requirement of the TLA on or prior to April 4, 2009.
INTERROGATORY NO. 7:
Identify all work performed by Interplay on the Fallout MMOG prior to April 4, 2009, including, but not limited to: identifying all Interplay personnel working on the Fallout MMOG and the nature of work they performed; identifying all non-Interplay companies and personnel working on the Fallout MMOG and the nature of work they performed; identifying all agreements with any third parties related to the Fallout MMOG; and describing all activities related to designing, coding, rendering and otherwise developing the Fallout MMOG.
INTERROGATORY NO. 8:
If you contend that “Project V13” is not the Fallout MMOG contemplated by the TLA, identify all work performed by Interplay on the “Project V13” MMOG prior to April 4, 2009, including, but not limited to: identifying all Interplay personnel working on the “Project V13” MMOG and the nature of work they performed; identifying all non-Interplay companies and personnel working on the “Project V13” MMOG and the nature of work they performed; identifying all agreements with any third parties related to the “Project V13” MMOG; and describing all activities related to designing, coding, rendering and otherwise developing the “Project V13” MMOG.
INTERROGATORY NO. 9:
Describe the concept of the “Project V13” MMOG and/or any MMOG currently under development by Interplay, including major characters, storylines, and background.
INTERROGATORY NO. 10:
If you contend that “Project V13” is not the Fallout MMOG contemplated by the TLA, describe the concept of the Fallout MMOG, including major characters, storylines, and background.
INTERROGATORY NO. 11:
Identify how much money you had spent on developing the Fallout MMOG prior to April 4, 2009.
INTERROGATORY NO. 12:
Identify how much money you had spent on developing the “Project V13” MMOG prior to April 4, 2009.
INTERROGATORY NO. 13:
Identify all compilations and collections of the Pre-existing Fallout Games, including but not limited to “Fallout Trilogy,” “Fallout Collection,” and “Saga Fallout,” and the dates of first sale of each collection, separately for boxed and digital formats.
INTERROGATORY NO. 14:
Identify the first date of sale of “Fallout Trilogy.”
INTERROGATORY NO. 15:
Identify and describe in detail any new content, asset or feature that has been included in any copy for sale of any of the Pre-existing Fallout Games, individually or in collections, in boxed or digital formats, since April 4, 2007.
INTERROGATORY NO. 16:
Identify all third parties who manufacture, distribute, and/or sell the Pre-existing Fallout Games under contractual arrangements with Interplay, whether individually or in collections, whether in boxed or digital formats, and for each third party identified, state the relevant time period during which it manufactured, distributed and/or sold the Pre-existing Fallout Games and identify which of the Pre-existing Fallout Games each third party manufactured, distributed and/or sold.
INTERROGATORY NO. 17:
Identify and describe any information supporting your contention that an assignment is different from a sublicense.
INTERROGATORY NO. 18:
Describe your efforts to obtain approval from Bethesda regarding sublicenses to third parties.
INTERROGATORY NO. 19:
Describe your efforts to obtain approval from Bethesda regarding promotional materials for the Pre-existing Fallout Games.
INTERROGATORY NO. 20:
Identify and describe any and all communications evidencing consumer confusion, including any complaints Interplay has received from customers regarding the contents of “Fallout Trilogy” or any other compilation of the Pre-existing Fallout Games.
INTERROGATORY NO. 21:
Identify all efforts to sell the Fallout intellectual property from January 1, 2001 to the present.
INTERROGATORY NO. 22:
Identify all projects currently being developed by Interplay.

If the answers will also be made public, the ones to questions 9 and/or 10 will be the ones that I'm the most interested in reading. Number 15 refers to fan-created mods that Interplay added to the latest version of the Fallout Trilogy pack, which the Asset Purchase Agreement does not allow.

And these are the facts that Bethesda wants Interplay to admit:

REQUEST NO. 1:
Admit that Interplay received from Bethesda $1,175,000 for the Exclusive License Agreement executed on June 29, 2004.
REQUEST NO. 2:
Admit that Interplay received from Bethesda the total amount of $5,750,000 in three installments under the APA executed on April 4, 2007.
REQUEST NO. 3:
Admit that Interplay did not commence “full-scale development of its FALLOUT MMOG” on or before April 4, 2009.
REQUEST NO. 4:
Admit that, in 2009, Interplay did not have the internal resources required to commence full-scale development of the Fallout MMOG.
REQUEST NO. 5:
Admit that Interplay had not “secured financing for the FALLOUT MMOG in an amount no less than US $30,000,000” on or before April 4, 2009.
REQUEST NO. 6:
Admit that Interplay did not have or hold US $30,000,000 in its own account(s) as of April 4, 2009.
REQUEST NO. 7:
Admit that Interplay did not have or hold US $30,000,000 in its own account(s) at any time in 2009.
REQUEST NO. 8:
Admit that Interplay did not have access to US $30,000,000 in financing for the FALLOUT MMOG on or before April 4, 2009.
REQUEST NO. 9:
Admit that Interplay did not secure a binding commitment from any lender, financial institution or any other third party, including Masthead Studios, for US $30,000,000 in financing for the FALLOUT MMOG on or before April 4, 2009.
REQUEST NO. 10: Admit that the first sale of “Fallout Trilogy” occurred after the execution of the APA on April 4, 2007.
REQUEST NO. 11: Admit that the first sale of “Fallout Trilogy” occurred in 2009.
REQUEST NO. 12: Admit that the first sale of “Fallout Trilogy” occurred in April 2009.
REQUEST NO. 13: Admit that Interplay did not submit to Bethesda any packaging, advertising or promotional material for “Fallout Trilogy” prior to its sale and distribution.
REQUEST NO. 14: Admit that Interplay has an agreement with Good Old Games to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 15: Admit that Interplay did not seek approval from Bethesda prior to entering into its an agreement with Good Old Games to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 16: Admit that Interplay has an agreement with GameTap to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 17: Admit that Interplay did not seek approval from Bethesda prior to entering into its an agreement with GameTap to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 18: Admit that Interplay has an agreement with Valve Corporation to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 19: Admit that Interplay did not seek approval from Bethesda prior to entering into its an agreement with Valve Corporation to distribute and sell the Pre-existing Fallout Games.
REQUEST NO. 20: Admit that the current contents of one or more of the Pre-existing Fallout Games are not identical to the contents of the Pre-existing Fallout Games prior to April 4, 2007.
REQUEST NO. 21: Admit that you have received communications from customers evidencing confusion between “Fallout Trilogy” and “Fallout 3.”
REQUEST NO. 22: Admit that Interplay’s filings with the U.S. Securities and Exchange Commission (“SEC”) are complete and accurate.

Requests 10-12 are based on Bethesda's utterly false belief that the Fallout Trilogy pack was first published in 2009, while in fact the first compilation with that name was published in 2006, before the APA.

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