It is now Bethesda's turn in the game of law. They have submitted a court document called "BETHESDA SOFTWORKS LLC’S OPPOSITION TO DEFENDANT / COUNTERCLAIMANT INTERPLAY ENTERTAINMENT CORPORATION’S MOTION IN LIMINE NO. 1 TO EXCLUDE BETHESDA SOFTWORKS LLC’S EXPERT, 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 OR PERFORMANCE THEREOF" - perhaps the longest title in the history of this case. While not a very creative title, it gets the point across. For reference, this is the document that this document seeks to refute. And that one was to refute anoter document, and so on and so forth and wtf legal system.
Here are the main points that Bethesda makes:
Plaintiff/Counter-Defendant Bethesda Softworks LLC (“Bethesda”) respectfully submits this opposition to Defendant/Counterclaimant Interplay Entertainment Corporation’s (“Interplay”) Motion in Limine No. 1 (the “Motion”). In its Motion, Interplay seeks to preclude Bethesda’s expert from testifying at trial to opinions concerning the meaning of contract terms contained in the Trademark License Agreement (the “TLA”) and to Interplay’s performance of such terms, because such testimony is not admissible under Rule 702 and because Bethesda’s expert did not disclose such opinions in his report. Interplay’s request for relief is mystifying. Bethesda’s expert, Mr. Thomas Bidaux, will not provide testimony on the meaning of the terms contained in the TLA or on Interplay’s performance of those terms, and Bethesda has not proffered any expert testimony in this regard. The Court will determine the meaning of the terms of the TLA and whether Interplay satisfied those terms. Mr. Bidaux, who is a highly-qualified expert in the development of online games including massively multiplayer online games (“MMOG”), will provide expert testimony regarding the work that is necessary to develop such games and what development of a game means and entails in the online gaming industry. Such testimony is plainly admissible under Rule 702 and was comprehensively disclosed in Mr. Bidaux’s report.
Alternatively, Interplay seeks to exclude Mr. Bidaux as a witness because Interplay did not depose him during (or after) discovery. This request for relief is frivolous. Interplay did not depose Mr. Bidaux because Interplay refused to appear for the deposition that Interplay requested and Bethesda agreed would be held in the Washington D.C. area on October 28, 2011.
Nevermind the fact that Interplay clearly stated in the previous document that they never agreed to the date...and that Bethesda's attorney stonewalled Interplay's about the whole thing.
To top it off:
Bethesda worked to coordinate the schedules of these four very busy individuals so that the depositions could be arranged on consecutive days, in the same calendar week, during the last part of September.
Moving on, Bethesda has also offered a Reply Memorandum in support of their Motion in Limine. They argue, tit for tat, that their Motion in Limine is, in fact, a proper Motion in Limine - unlike how Interplay's attorney characterized it. The main meaty issue, however, is the burden of proof. Interplay's attorney argues that the burden of proof should be on Bethesda, not Interplay. Bethesda, obviously, does not want that:
Interplay has the burden of proving the “full-scale development” and “Minimum Financing” requirements of Section 2.3, which are necessary for establishing Interplay’s license defense. License is an affirmative defense and the burden of proving the existence of a license is on the party invoking the purported license.
Bethesda also seeks to bar Interplay from arguing that they did, in fact, fulfill their contractual duties.
Interplay should be precluded from arguing at trial that it satisfieed the requirements of Section 2.3 of the TLA.
The real idiocy comes out, however, when Bethesda's attorney continues to argue that Interplay never had any right to use any of the Fallout world in their Fallout: Online game. "WTF?" you may ask. Yes, that is correct. Bethesda, pretty much proving they entered into the contract on bad faith, argues that Interplay could only use the name Fallout. They could not use the setting, any characters, any lore, anything at all other than the name. They go on to argue that Interplay should not be allowed to argue this point, as the contract is "unambiguous." Pardon me?
The APA and TLA are plain, clear and unambiguous. The TLA granted Interplay a conditional and temporally limited right to use the single trademark “FALLOUT” and nothing more, in the creation of an MMOG.
Now, everyone that has been a regular at DAC or the Fallout scene since the good old days of Fallout 1 and 2 knows what travesties befell Interplay. We all know that it is a shell of its former self and that Herve Caen seems like a pretty slimy businessman type who doesn't really care about gaming. We can all pretty much agree on that. We can all pretty much agree that Bethesda did nothing more with Fallout 3 than make an Oblivion mod. We were all pretty pissed about that. Either way here, angry old-timers will be pretty pissed. But when it comes to this court case, I, for one, cannot help but root for Interplay's attorney. Maybe not Interplay itself, but certainly their attorney. He outclasses Bethesda's attorney by a million miles. And Bethesda's slimy legal actions sully their name. Perhaps if Bethesda stopped being so litigious and focused less on PR and Marketing and more on making good, quality roleplaying games, then we could all be happy.
We will finally see some outcomes on December 5th, but that certainly won't be the end.