Here's a "biased" posting of just the filing facts followed by a "biased opinion" comment to counteract all the "non biased" comments that continuously flow in fashionable hypnocratic one line odes.
>>>>>>>>> Bethesda Court filing response to Interplay's filing
Despite having had the Affidavit of James L. Leder (“Leder Affidavit”) since November 25,
2009, Interplay has, for reasons it does not explain, waited until the afternoon immediately before the
preliminary injunction hearing in this case – in the middle of Mr. Leder’s deposition – to file its
Objections and Motion to Strike the Leder Affidavit. Putting aside the suspect timing, Interplay’s
grounds cited in support of its Objections and Motion to Strike are misplaced and do not apply to the
preliminary injunction context.
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Interplay seeks to have portions of the Leder Affidavit stricken on the basis that certain
statements are lacking in personal knowledge because they were made “upon information and belief,”
that certain others are conclusory, speculative, or irrelevant, and therefore inadmissible in evidence. See
Objections and Motion to Strike, at 2-4. Interplay further argues that the alleged inadmissibility of such
statements renders the affidavit “not sufficient to carry a plaintiff’s burden of demonstrating its right to
the relief requested.” Id. These arguments are based on inapposite case law and the wrong procedural
standard.
First, all of the statements made in the Leder Affidavit are made upon Mr. Leder’s personal
knowledge, based on his experience as an executive of the company and having been directly involved
in the company’s efforts relating to the protection and promotion of the Fallout brand as well as in the
events leading up to the dispute in this lawsuit. To the extent that certain statements in his affidavit were
made “upon information and belief,” they were made based on facts known to Plaintiff (and, in his role
as Chief Operating Officer, Mr. Leder) at the time of the filing of the Complaint and Motion for
Preliminary Injunction, and on good faith belief based on publicly available information which could not
be reasonably verified without discovery because the information was the type that was uniquely within
Interplay’s control. For example, prior to any discovery from Interplay, Bethesda did not have any way
of independently verifying whether “Project: V13” was “a code-name for an MMOG other than the
Fallout MMOG” (Leder Affidavit ¶ 13), or whether “Project: V13” was a reference to “Vault 13” (id.
¶ 14), or whether “Interplay began packaging, advertising and promoting the sale of ‘Fallout Trilogy’
after Bethesda’s launch of ‘Fallout 3.’” (Id. ¶ 15). Rather, such statements were based on Mr. Leder’s
personal knowledge gained through his role as COO, and on inferences drawn from information
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received by virtue of that role. Just because good faith allegations are made on “information and belief”
does not mean that such statements were not based on personal knowledge of the affiant.
Second, Interplay has taken full advantage of the opportunity to test the basis of Mr. Leder’s
knowledge and statements contained in his affidavit in a deposition lasting over seven hours on
December 9, 2009. Mr. Leder will also be testifying as Bethesda’s only witness at the preliminary
injunction hearing and, in that capacity, Interplay will once again have the opportunity to cross examine
him and test the basis and depth of his personal knowledge. To the extent that Interplay suggests that
Mr. Leder’s affidavit is somehow the only evidence upon which Plaintiff must meet its burden of proof
for purposes of a decision on the preliminary injunction is flatly wrong.
Furthermore, contrary to Interplay’s argument, the governing law in this District is clear that the
Court can and should consider even inadmissible evidence in deciding a motion for preliminary
injunction, including “affidavits that may prove later to be inadmissible at trial.” Mancia v. Mayflower
Textile Services Co., 2008 WL 4735344, at *4 (D. Md. Oct. 14, 2008). “The determination whether to
grant a preliminary injunction is expected to be based on ‘evidence that is less complete than in a trial on
the merits.’” Id. (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). See also U.S. v. Link
Flight Simulation Corp., 722 F. Supp. 1248, 1252 (D. Md. 1989) (finding that a challenge to affidavit
submitted in support of preliminary injunction is “unpersuasive,” because “the Court may consider
inadmissible affidavits in a preliminary injunction hearing”); Signature Flight Support Corp. v. Landow
Aviation Ltd. Partnership, 2009 WL 90849 (E.D. Va. Jan. 13, 2009) (denying motion to strike
declarations that may contain hearsay, opinions and conclusions because they contain information that
may be helpful to the Court in reaching a decision on the motion for preliminary injunction, since “[a]
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court’s decision on a motion for preliminary injunction is customarily granted on the basis of procedures
that are less formal and evidence that is less complete than in a trial on the merits.”).
>>>>>>>>>>>>>>>>>> End quote.
I'll leave my opinion on the filing for another post in order to offend the dry and or non existent humor thought police to allow it to think up of another way to "unbiasedly" denigrate me while waiting on who wins in order to see who will be paying for the translation of the next border exported Fallout game.
Being paid by both sides does not leave room for a person to become biased one way or another, right?
