Additional documents have been filed in the ongoing lawsuit against Electronic Arts and Origin Systems Inc.

　　In documents released to GameSpot News, the attorneys representing gamers who are alleging EA and OSI shipped a buggy Ultima Online are calling EA's tactics abusive and their understanding of the law deficient.

　　"Defendants have attempted to libel and slander Plaintiff's counsel and Plaintiffs, and, again, intimidate Plaintiffs into giving up their pursuit of this lawsuit," the document says in part. "Defendants are obviously unaware of the law...."

　　The contents of Schultz's response, filed at the end of July, to EA's Motion to Compel follows:

　　(the "next page" link below will let you view the document)BAUER & SCHULTZMEISENHEIMER & HERRON

　　SUPERIOR COURT OF CALIFORNIAIN AND FOR THE COUNTY OF SAN DIEGO

　　KEN HINTHER, MIKE TRYON, DAVID JAFFE, MARK WILLIAMS, ROBERT FLIPPING and STEVE PELLETIER

　　Plaintiffs, v. ELECTRONIC ARTS, INC., et al.,

　　Defendants.

　　MEMORANDUM OF POINTSAND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO COMPEL AND FOR SANCTIONS

　　I INTRODUCTION

　　This Motion is completely unnecessary, procedurally incorrect and filed with the intent of discrediting Plaintiffs and their counsel in the press and public, rather than deal with any realistic or meaningful issues before the Court. Substantial sanctions are appropriate.

　　IINOT ONLY DID DEFENDANTS SERVE THREE DIFFERENT NOTICES OF MOTION, NONE OF THE NOTICES FOLLOW THE APPROPRIATE LAW, NOR DID DEFENDANTS MEET AND CONFER AS REQUIRED

　　This is a lawsuit for breach of contract, warranty and misrepresentation over the purchase of a computer game that over 200,000 people paid $60 or more for, only to find out when they opened the box that an additional $10 per month charge was required to play the game. The game, for a variety of reasons, broke down or didn't work at all for large periods of time, despite Defendants' written promises that the game would work 24 hours a day seven days a week. Defendants have ignored, and are ignoring, many of the most basic and simple tenants of California law in their Motion and conduct in this case.

　　There has been no meet and confer relative to this motion as required by California law (see, Code of Civil Procedure (“CCP”) Section 2025(0); 2030(l) and 2031(l), all which state that any motion compelling additional responses “shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of any issue presented by it”. See, Declaration of George J. Schultz. During the deposition of Plaintiff KEN HINTHER, defense counsel asked Plaintiffs' counsel on the record if he felt that a meet and confer had been done relative to any discovery problems or issues. Plaintiffs' counsel responded no. See, June 19, 1998 transcript of Ken Hinther at p. 59, lines 1-3.

　　AFTER receiving Defendants' original Motion to Compel Discovery Responses on July 2, 1988, Plaintiffs co-counsel Matthew V. Herron attempted with a letter to try and understand (essentially start the meet and confer process) what Defendants believed were the discovery issues, because it was literally impossible to tell from their moving papers what exactly Defendants were seeking. See, Exhibit A to Notice of Lodgment. He received a truly abusive and non-responsive reply, which shed no further light on the subject. See, Exhibit B to Notice of Lodgment. Thus even after the filing of the Motion, Plaintiffs were thwarted in trying to ascertain the relief sought.

　　On July 3, 1998, and near as Plaintiffs can tell without any consent or permission of the Court, ex parte or otherwise, Defendants' first Amended Notice of Motion to Compel Discovery Responses (and second notice of the motion) was served upon Plaintiffs. This Notice for the first time stated some “allegedly” specific discovery issues, but hardly specific enough to tell what Defendants wanted. After the filing of the first Amended Notice and their July 2, 1998 letter (Exhibit B), Defendants sent another letter regarding the issues of this Motion (Exhibit C to Notice of Lodgment), much too late to satisfy any meet and confer requirements (and still allegedly asking for discovery already provided), and still vague. Then, on July 12, 1998, Plaintiffs' received Defendants second Amended Notice of Motion (the third notice received), which was still vague.

　　Even though the Court should use the original Notice to base its decision on as the first and second Amended Notice are still defective, the relief requested (as near as can be ascertained) has already been provided to the Defendants. See, Declaration of George J. Schultz.III

　　DEFENDANTS' MOVING PAPERS ARE DEFICIENT AS THEY DO NOT COMPLY WITH REQUIRED CALIFORNIA RULES OF COURT

　　Finally, in terms of the technical deficiencies of the Motion, Defendants have not complied with California Rules of Court 335(a), which states in pertinent part as follows:

　　A motion to compel further responses to interrogatories, inspection demands, or admission requests . . . shall be accompanied by a separate document which sets forth each interrogatory, item or category of items, request, question, or document or tangible thing to which further response, answer or production is requested, the response given, and the factual and legal reasons for compelling it.

　　Defendants have not provided such a statement, but have provided three separate Notices of this Motion.

　　IVDESPITE REPRESENTATIONS BY DEFENDANTS TO THE CONTRARY, PLAINTIFFS HAVE ALREADY SUPPLIED MASSIVE AMOUNTS OF DISCOVERY TO DEFENDANTS AS REQUESTED.

　　The Court should keep in the mind that Defendants have not even answered yet. The First Amended Complaint was served on Defendants on April 27, 1998 and April 28, 1998. Defendants requested additional time to respond to the First Amended Complaint because they needed to complete all of their discovery before demurring. See, Declaration of George J. Schultz. Shortly thereafter, on May 7, 1998, massive discovery was propounded by Defendants. See, Exhibits D, E and F to Notice of Lodgment. As already stated, except for those Plaintiffs who failed to respond to discovery because they were too intimated by Defendants' outrageous discovery requests, all other discovery has been completed. Four out of the remaining six Plaintiffs have already been deposed, Plaintiffs have turned over documents to Defendants, and have verified that discovery. Literally thousands of pages of information have been turned over to Defendants. Plaintiffs who did not respond to written discovery have been dismissed.

　　This is a consumer class action over the purchase of a computer game. It is hardly a heavy “document case” on the Plaintiffs' side of the ledger. Plaintiffs bought a game that didn't work as promised, pure and simple. While, of course, Defendants are entitled to conduct discovery, it is still proper to keep things in perspective.

　　With regard to the two remaining Plaintiffs to be deposed, their depositions are tentatively set for August 17th and 18th (it should be noted that these two depositions are not sought to be compelled in Defendants' Motion). A few Plaintiffs, as a courtesy to Defendants, are trying to order from their banks or game stores certain records which may be of help (something they are hardly required to do) and that is all that remains. The bottom line of all of this is that in an approximately one month period with a massive number of Plaintiffs and a massive number of document requests (56) and interrogatories (90) propounded, Plaintiffs complied with all of it. See, Declaration of George J. Schultz. The ultimate irony of Defendants' urgency is they supposedly needed this information in a hurry (and from a reading of their Demurrer apparently did to use with their Demurrer). Defendants are obviously unaware of the law which does not allow a presentation of evidence outside the “four corners of the complaint” on a demurrer hearing (see, Plaintiffs' opposition to Defendants' Demurrer). In how many major class actions has essentially all written discovery and depositions been done before defendants even answered? VDEFENDANTS AND THEIR COUNSEL'S CONDUCT IN THIS MATTER HAS BEEN OUTRAGEOUS FROM THE START

　　Almost immediately after the filing of this unnecessary and specious motion, Defendants forwarded a copy of this Motion, as well as the Demurrer, to the press. This particular conduct resulted in the publication of an article in Game Spot News. See, Exhibit G to Notice of Lodgment. It should be noted that Defendants apparently did not forward to the press their Amended Motion or their Amended Demurrer referencing the fact that they had made errors in their original filings.

　　Essentially by taking bits and pieces of irrelevant opinions of Plaintiffs' counsel and Plaintiffs from INTERNET CHAT ROOMS (Usenet postings), Defendants have attempted to liable and slander Plaintiffs' counsel and Plaintiffs, and, again, intimidate Plaintiffs into giving up their pursuit of this lawsuit. See, Declaration of George J. Schultz. This chat room information is inaccurate, misleading, and completely irrelevant to this Motion. Plaintiffs literally turned over hundreds, if not thousands, of chat room messages left by various people involved in the lawsuit, none of which are relevant to this Motion and are included for the sole purpose of misleading Plaintiffs, the public and the Court.

　　Defendants' conduct has been equally outrageous in other aspect of these proceedings. As previously stated, they have completely ignored all rules relative to discovery and motions to compel discovery. They have completely rejected attempts to meet and confer and have done so in a very unprofessional manner and method (see, Exhibit B). They have propounded discovery of a consumer class solely with the intent to intimidate and invade privacy as illustrated by the following requests (just a few examples) in their First Set of Inspection Demands propounded to Plaintiffs on May 7, 1998:

　　REQUEST 33: All Documents constituting Your phone bills for the past two years.

　　REQUEST 35: A print out of the directory of the hard drive of each computer on which Plaintiff installed Ultima Online that shows all files, including subdirectories, if any, present on that hard drive.

　　REQUEST 36: A print out of the directory of each disk that Plaintiff used with Ultima Online that shows all files, including subdirectories, if any, present on said disk(s).

　　They requested this information for a game that has only been out since September of 1997. How the list of telephone numbers that an individual consumer has spoken to for the last two years could be calculated to lead to discoverable evidence over the purchase of a computer game is beyond explanation. Additionally, Defendants have requested Plaintiffs provide proof of purchase of the game, when anyone who wants to play the game must register with Defendants and provide specific information on their purchase of the game. This requested information about proof of purchase is obviously available to Defendants through their own records.

　　During depositions (which were videotapped), Defendants have continued their conduct. Lead counsel Claude Stern essentially informed Plaintiff KEN HINTHER on the deposition record that he had no right to claim an attorney/client privilege, only his lawyer could claim that privilege.

　　MR. SCHULTZ: His question was: Did you make a copy of it then?

　　THE WITNESS: At that point in time I did not make a copy of it.

　　MR. STERN: Q. Now you made a copy since?

　　A. I believe I've maybe copied a portion of it for various reasons.

　　Q. Why?

　　A. Attorney-client privilege.

　　A. What does that mean, attorney-client privilege?

　　MR. SCHULTZ: You don't have to explain what attorney-client privilege means. I think he probably has an understanding of the concept, and instruct you not to answer.

　　MR. STERN: I'm asking a question, why you did something. Now your lawyer can give you an instruction, but you're not a lawyer, right, you don't have a college degree, right?

　　MR. SCHULTZ: Don't even answer.

　　MR. STERN: So you're not in a position to tell me what represents privileged communications.

　　June 19, 1998 Deposition of KEN HINTHER at p. 257, l. 16 through p. 258, l.5

　　Defendants have on the record repeatedly informed Plaintiffs (incorrectly, of course, and in an extremely rude and accusatory manner) that as far as interrogatories go they are required to entirely complete the questions themselves, and the fact that Plaintiffs' lawyers provided assistance in the answering of interrogatories is improper. This, of course, when the very interrogatories they sent state in the instructions to the answering party that “if you do not have enough personal knowledge to fully answer an interrogatory . . . make a reasonable and good faith effort to get the information by asking other persons . . . .” They further informed Plaintiffs directly that they were in deep trouble because there was information contained in interrogatories that was not of their own personal knowledge; when, of course, the law and their own interrogatory directions indicated that it didn't have to be.

　　This conduct has carried over into Plaintiff's discovery. In each of the two depositions Plaintiffs have taken, Plaintiffs' counsel asked at the very beginning the simple and common question what documents the deponents reviewed in preparation for the deposition. Defense counsel has directed the witnesses not to answer the question.

　　All Plaintiffs did was buy a game which, when it works, they seem to enjoy, but they believe doesn't work much of the time and was misrepresented. This case is already only a few months old and whatever its importance, there is no basis to treat Plaintiffs or their counsel like this.

　　Even on a simple matter like insurance, Defendants' counsel has viciously attacked Plaintiffs. This Court should be aware that Defendant ELECTRONIC ARTS (OSI is its wholely owned subsidiary) is a NASDAQ traded company which last year grossed approximately $729,000,000 and made over $90,000,000 of profit selling games. See, Declaration of George J. Schultz. Plaintiffs and Plaintiffs' counsel in various chat rooms prior to the filing of the suit indicated their opinion, in various discussion groups, that if there was a lawsuit Defendants would likely have errors and omissions insurance to cover defense costs, as well as certain aspects of liability depending on the causes of actions. Keep in mind that in these Usenet discussion groups people often do not use their own names, there are no requirements for any particular type of qualifications, and they essentially are no different than a discussion in a bar or restaurant on a particular topic.

　　In any event, at Defendants' depositions recently taken in San Jose, California Defendant ELECTRONIC ARTS' general counsel Ruth A. Kennedy publicly scolded Plaintiffs' counsel on an elevator. She stated for all to hear that she had serious doubts he was even an attorney, if he believed that a company like hers (the company presumably she is responsible for seeing carries adequate insurance) would have E&O insurance. Plaintiff would argue this fury is misdirected. It is ELECTRONIC ARTS' shareholders who should be outraged, not at Plaintiffs' counsel but at their own company's legal department if it would allow a company of Defendants' size and stature to have no E&O coverage. See, Declaration of George J. Schultz.

　　There are numerous other instances of Defendants' abuses. Hopefully these few examples will give the Court a feel as to Defendants' conduct relative to what apparently both sides feel is an extremely important legal matter. VI

　　GIVEN THE VAGUENESS OF DEFENDANTS' MOTION, PLAINTIFFS' BELIEVE THEY HAVE COMPLIED

　　Despite the fact that Defendants' Amended Notices were filed without permission of the Court and the Motion is still defective, and after trying to wade through Defendants' moving papers in terms of relief requested, Plaintiffs respond as follows:

　　Defendants request (1) “requires the ten plaintiffs who have not responded to the special and form interrogatories (served May 7, 1998) to respond thereto”: Six Plaintiffs have responded to the special and form interrogatories. Exhibit H to Notice of Lodgment is a copy of the proof of service of those responses. All were personally verified. Plaintiffs who have not responded due to Defendants' intimidation tactics and overbroad discovery have been dismissed. See, Exhibit I to Notice of Lodgment. Since Defendants have not listed any names stating who has not responded, it is difficult to tell who Defendants are complaining about.

　　Defendants' request (2) “requires all Plaintiffs who did not verify their interrogatory responses to those interrogatories to do so”: All Plaintiffs have verified all interrogatories, including Robert Flipping. See Exhibit J to Notice of Lodgment. Again, no names were provided, so there is now way to know who Defendants refer to.

　　Defendants' request (3) “requires all plaintiffs who have not done so to comply with CCP Section 2031(g)”: All Plaintiffs have complied with CCP Section 2031(g) and have signed their discovery responses under oath, with the exception of MARK WILLIAMS' response to Defendants' Inspection Demand, as he is currently on vacation. MR. WILLIAMS' verification will be supplied as soon as he is back from vacation. However, it should noted that this Response to Defendants First Inspection Demand was also verified by Plaintiffs' counsel pursuant to CCP Section 446, and MR. WILLIAMS' deposition is not scheduled to take place until either August 17th or 18th.

　　Defendants' request (4) “requires all plaintiffs who have not done so to comply with CCP Section 2031(f)”: All Plaintiffs have complied with CCP Section 2031(f) and responded separately to each inspection demand informing Defendants whether it will be produced, etc. Again, this request is not specific enough to determine who Defendants are referring to.

　　Defendants' request (5) “requires plaintiffs Bennett, Benson and Royal to appear for depositions pursuant to CCP Section 2025(j)(3)”: These Plaintiffs have been dismissed from the litigation. Defendants were informed during the week of the June 15th Plaintiff depositions and again on July 10, 1998 at Defendants' depositions, on and off the record, that these Plaintiffs would be dismissed so there was no need for the re-noticing of these depositions or this Motion.

　　Defendants' request (6) asks for “award of costs of motion under CCP Section 2025(j)(3); 2030(k) and 2031(k)”: The request for sanctions is not appropriate in that this Motion is inappropriate. VII

　　DEFENDANTS SHOULD BE SANCTIONED FOR BRINGING THIS INAPPROPRIATE (AND DEFECTIVE) MOTION TO COMPEL AS PLAINTIFFS HAVE COMPLIED WITH ALL WRITTEN DISCOVERY REQUESTS

　　In addition to the time spent in preparing this opposition (see, Declaration of George J. Schultz), Plaintiffs would request additional sanctions from the Court pursuant to CCP Section 2023 which provides in pertinent part as follows:(a) Misuses of discovery process include, but are not limited, to the following:

　　(8) Making . . . unsuccessfully and without substantial justification, a motion to compel . . . .

　　(b) To the extent authorized . . . the court, after notice to an affected party, person or attorney, and after opportunity for hearing, may impose the following sanctions against any one engaging in conduct that is a misuse of the discovery process.

　　(1) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (emphasis added)

　　This Motion has been a complete and total waste of time, clearly filed for an ulterior purpose by Defendants.

　　All of the discovery propounded by Defendants was complied with. Plaintiffs have voluntarily dismissed out individuals who did not comply with discovery in a far more rapid time than even this Court has the authority to do. Within a matter of weeks Plaintiffs have, just as they agreed to do, dismissed out the people who really did nothing more wrong than refuse to participate in their privacy being invaded to a level inappropriate for this type of matter.

　　Defendants then utilized the opportunity to attack Plaintiffs and their counsel for nothing more than chat room conversation taken out of context and completely irrelevant to this matter. Plaintiffs and their counsel have first amendment rights to express their opinions about Defendants' product, particularly on an internet opinion page designed for that purpose.

　　For the foregoing reasons it is requested that Defendants be sanctioned for Plaintiffs' reasonable attorneys' fees and costs in the sum of $2,000, plus an amount the Court deems appropriate.

　　BAUER & SCHULTZ

　　By:_________________________ GEORGE J. SCHULTZ Attorney for Plaintiffs