We reported yesterday 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:
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.
Their number 1 reason for this is pretty straight forward:
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.)
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:
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.
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.