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.

Parties

The parties in the transcript are

For the Court
- The Court: Justice Deborah K. Chasanow of the US District court, Maryland
- Also Present: Sharon O'Neill, Court Reporter ; an unknown clerk.
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 ; James Leder, Chief Operating Officer and Executive Vice President Bethesda Softworks LLC ; Thomas Bidaux of ICO Partners, as an Expert Witness.
For the Defendant (Interplay Entertainment)
- Mr Gersh: Jeffrey Gersh of Gersh Derby
- Mr Caen: Herve Caen, CEO of Interplay Entertainment
- Also Present: Geoffrey Harvey of Gersh Derby

Transcript

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Pages 1 - 10

United States District Court
For the District of Maryland
Southern Division

Bethesda Softworks, LLC

Vs.
Interplay Entertainment

Docket 09-CV-2357-DKC

Greenbelt, Maryland
December12, 2011

Transcript of Trial
Before the the honourable Deborah K. Chasanow
United States District Judge

A P P E A R A N C E S

For the Plaintiff:	Howard Stahl, Esq. Joeseph LoBue, Esq Aaron Tucker, Esq.
For the Defendant:	Jefferey Gersh, Esq. Geoffrey Hervey, Esq.
Court Reporter:	Sharon O'Neill, RMR Official Court Reporter United States District Court 6500 Cherrywood Lane Greenbelt, Maryland, 20770 301-344-3227

Defendant's Witnesses	Direct	Cross	Redirect	Recross
Herve Caen	39

The Court: Good Morning
Voices: Good Morning
The Clerk: Good Morning, Your Honour
The Court: Please be seated
The Clerk: The matter now pending before the Court is DKC 2009-2357, Bethesda Softworks, LLC vs. Interplay Entertainment Corporation. The matter now comes before the court for a bench trial. Counsel, would you please identify yourselves for the record.
Mr Stahl: Good Morning your honour. Howard Stahl, Joeseph LoBue and a new addition, Aaron Tucker from Fried Frank, on behalf of the plaintiff Bethesda Softworks.
Mr Gersh: Good Morning, Your Honour. Jeffrey Gersh and Geoffery Hervey on behalf of Interplay Entertainment, the cross-complainant.
The Court: Very Good. Thank you.
Well last I checked I had received late last night an additional pretrial memorandum from Interplay. On Friday, I had - I don't know if it was Friday or Thursday - I had received one from Bethesda. I've also received from deposition copes.
As I think you probably know, I thought I was waiting for some counter-designation on Mr Caen, so I didn't read all of that. I had started it, but I have not read all of what I was presented ahead of time. I have read the designations on Frederic Chesnais - I don't know how to pronounce that, and just this morning, I understand, an additional deposition has been given to the clerk. Obviously I haven't had a chance to read that one.
That's where I am in preparation for today.
Mr Gersh: If I could address that. There won't be any more counter-designations on Mr Caen because we can't designate anything to be read into the record
The Court: Well, I'm not sure that's true if you felt there were other portions that would have make complete or clarify what had been designated by the plaintiff. I understand you can't affirmatively use the deposition, but I didn't know whether there were designations that you felt were completeness type.
Mr Gersh: There are, and we approached it based upon what would affirmatively would be put forth. We will certainly provide for Your Honour tonight the counter-designated portions
The Court: Okay, and he's availailable and will be called?
Mr Gersh: Yes
The Court: I'm sure before we're all finished I'll have a full idea of what each side believes, but that's why I decided I - I really couldn't because I don't want to have to go back and say, oh, well, that was a couple of lines before or after what I did read
Mr Gersh: Understood, thank you.
The Court: But I will undertake to read them as soon as I can. Whether its at a lunch break or this evening, I certainly will do that.
Are there going to be any counter-designations - what was the one that was handed today?
Mr Gersh: James Leder.
The Court: Leder?
Mr Stahl: Your honour, I don't believe there will be, but, again, we'll look again tonight if that's Your Honour's preference, is to have things that will clarify, either before or after request. We'll give them to you first thing in the morning if there are any, but I don't think there will be.
The Court: Right, Okay. This is James Leder that was just given to me. All right Okay. Well, that's what I've been able to do in advance of today. So Mr Stahl, are you ready to begin?
Mr Stahl: Good Morning your honour. The first matter, I believe, Your Honour, and it may be completely moot -
The Court: we need to - I hope i don't have to remind you all the time. These microphones need to be adjusted so that I and Ms O'Neill and everyone else can hear
Mr Stahl: Okay. Thank you, Your Honour
The Court: Um Hum.
Mr Stahl: This may be an academic request, and I was going to ask the Court to invoke the rule on witnesses. On our side, on the Plaintiff's side, we have Mr Leder here as the Corporate representative. Mr Bidaux is the expert, and he's obviously entitled to remain in the courtroom during the proceedings. And the others folk are lawyers with me, or paralegals, so I think they're exempt. I believe, based on what counsel for Interplay said this morning, that the corporate representative for Interplay was Mr Caen and that everybody else that's in the courtroom are Lawyers for Interplay, and if that's correct, I think the rule could be invoked, but noone will have to leave.
The Court: Right, Okay.
Mr Gersh: I don't have any problem. My only question was whether or not it was appropriate for Mr Bidaux to be here given the deposition issues that we had concerning the ability to take it and whatnot. I would ask that he actually be excluded during the testimony.
Mr Stahl: Your Honour, the -
The Court: Right, Yeah, I - frankly I don't know that it matters because its my understanding he is not going to be testifying based on the evidence that's applicable to the dispute directly to the people here, that he's - I mean I'm not sure that it matter because he's not going to be opining as to anything based upon the evidence presented here in court.
Mr Gersh: My Only issue is that -
The Court: He then doesn't really need to be here because he isn't going to be commenting on anything here.
Mr Stahl: Your Honour, he's here to assist the court in explaining whatever questions the court has about the -
The Court: No, he's your expert, not mine
Mr Stahl: But he's here only for the purpose of helping to inform the Court as to -
The Court: But you'll be the one asking the questions -
Mr Stahl: That is correct
The Court: - as to what you think will help me
Mr Stahl: That's correct
The Court: How early in the process is he going to be called?
Mr Stahl: I think it all depends on how long it is that the defendant's case takes, given where the burden is in proving license.
But You'r honour, under the rules, under the federal rules and the local rules, an expert is entitled to remain in the courtroom.
The Court: Because an expert usually is expressing an opinion based upon matters in evidence, and this is a different type of expert.
I'm not going to exclude him. I know he's here, but I would suggest that the better approach is to get him on and off if the's not going to be - if his testimony is not dependent on the other evidence I hear.
Mr Stahl: Your Honour, in like of the court's ruling a week ago on the burden, he'll go on and off, I believe after the defendants have put on their evidence as to full-scale development of an MMOG and the building of it.
I believe, Your Honour, given that we are the plaintiff, we have the burden, at least with respect to the counts we've alleged on infringement, copyright infringement, trademark infringement and our request for a declaratory judgement on lack of the license or the expiration of the license under the terms of the APA. All of the exhibits, Your Honour, that would establish the elements of those counts from our perspective have been agreed to in the sense that there are, I don't believe, any objections to them, with the exception of, perhaps, one. And with the court's permission, we would just offer those into evidence now to put the plaintiff's case in on the parts that we have to prove, and then the burden would, of course, shift to the defendants to prove license. So with the court's permission I would do that.
The Court: All right. I have you exhibit list here in front of me, and let's go slowly so that we - the local rule is that when an exhibit number is mentioned, it is received in evidence unless there is a contemporaneous objection.
Mr Stahl: Very well, Your Honour.
The Court: Let's take it slowly so we can all make sure we're…
Mr Stahl: The first question I had for the Court, Your Honour, relative to the offering of evidence, the parties have entered into stipulations of fact under the Pretrial Order.
The Court: Um hum.
Mr Stahl: Do we move those - is it the Court's preference to move those into evidence right now so that all of the stipulated facts are in evidence? And if so, we would move at this time that the stipulated facts be allowed into evidence
The Court: All right. Let's - the stipulated facts are in Section 7 of the Pretrial Order, and I believe there was one additional one, but lets go through them. I'm not going to read them. It's on page 10, begins on page 10 of the Pretrial Order
Mr Stahl: That's correct, Your Honour.
The Court: It's A through - A1 through 36. And let me get it in front of me.
Mr tail: Your Honour, I believe the only other one that's been agreed to is on page 23, Item 28, which is the APA and the exhibits to it, and the annexes and schedules, that it constitutes the entire agreement.
The Court: Yes, Those are the ones that my notes reflected. Is that understood, Mr Gersh?
Mr Gersh: Yes, Your Honour, with just one clarification. There's been a number of counts that have been, as I understand from speaking to counsel, been withdrawn.
The Court: Um hum.
Mr Gersh: And there's a number of facts that apparently were stipulated to before that that are of no relevance any longer to this matter
The Court: We won't worry about relevance, we can talk about that in your argument. Is there a problem

Pages 11-70

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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

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