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So, in response to yesterday's news of Bethesda's motion in limine against Interplay, they have countered with their own. Pasted directly from Duck and Cover (it's lazy journalism on my part but some serious browser issues are preventing me from writing out my own interpretation as I usually would, apologies):
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:
Their number 1 reason for this is pretty straight forward:
(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.)
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:
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."
Stay tuned for more exciting episodes in court. Feel free to insert your "law never changes" jokes into the comments section below.