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Richard M. Bennon, U.S.DJ. 

January 3,2008 

VIA FEDEX 

The Honorable Richard M. Berman 

Daniel Patrick Moynihan 

United States Courthouse 

500 Pearl Street, Room 650 

New York, New York 10007 

RE: 

Dear Judge Berman: 

Christopher Pape 

07-CV-5760 (RMB) 

v. Electronic Arts, Inc. 

Pursuant to the Court's order of December 21, 2007, we write with a short discovery 

update in the above-captioned matter. 

Defendant Electronic Arts Inc. ("EA) sent its Rule 26(a)(l) Initial Disclosures to Plaintiff 

when they were due on November 9, 2007. EA received Plaintiff's Initial Disclosures on 

November 21, 2007. Plaintiffs initial disclosures were too broad and unspecific to be of any 

use. For example, in identifying documents that he intends to rely on to support his claims, 

Plaintiffs counsel listed "Images of 'Freedom' artwork within the game 'Freedom Fighters"' and 

"all copies of documents including memoranda received by EA during the period commencing 

June 1, 2000 and thereafter to the date to the commencement of this action." Plaintiffs 

disclosures did not provide any damage calculation. EA requested that Plaintiffs counsel 

supplement his initial disclosures, but we have not received any such supplement. 

EA served its First Set of Document Requests to Plaintiff on November 16, 2007. 

Although responses were due on December 17, 2007, we have not yet received any formal 

response to our requests, nor has Plaintiff produced any actual documents. In a phone call 

yesterday, January 2"d, Plaintiffs counsel promised to send responses to our document 

requests sometime next week, and produce actual documents soon after that. EA also served a 

set of Requests for Admission on November 16,2007, but we have not received a response. 

On November 21, 2007, EA received Plaintiffs First Set of Document Requests. Upon 

review of Plaintiffs document requests it was clear that Plaintiffs counsel had simply copied and 

redirected EA's own document requests back at EA. This resulted in a series of nonsensical 

requests, including, for example, a request that produce "any publications in which Plaintiffs 

Work has been reproduced, displayed, or described" and "all documents supporting [its] 

contention that EA infringed Plaintiff's copyright to Plaintiffs Work." A 

idea where Plaintiffs work has been reproduced; as to the latter, EA o 

11 14 AVENUE OFTHE AMERICAS. NEW YORK, NY 10036 1: (212) 479-6000 F: (212) 479-62 

Case 1:07-cv-05760-RMB Document 18 Filed 01/04/2008 Page 1 of 2
GODWARD KROIUISHLLP 

The Honorable Richard M. Berman 

January 3,2008 

Page Two 

that EA infringed Plaintiffs copyright and it does not possess any documents responsive to such 

a request. 

EA sent its formal responses to Plaintiffs First Set of Document Requests on December 

17, 2007. EA also informed Plaintiffs counsel of the deficiencies in his document requests by 

telephone shortly thereafter and suggested that Plaintiffs counsel redraft and resubmit his 

document requests. It should not be surprising therefore, that Plaintiffs counsel writes in his 

December 28, 2007 letter to the Court that he has not had "any discovery with respect to 

Defendant's employees or licensees of the Defendant" - counsel has yet to submit any coherent 

discovery requests. 

EA has noticed the deposition of the Plaintiff, Christopher Pape, for Friday, January 18, 

2008, at 10:OO AM, at Cooley's offices in New York. EA wishes to have Plaintiffs documents in 

advance of the deposition. 

Plaintiffs counsel has indicated that he is interested in taking the deposition of the 

graphic artist who created the "Freedom1' graffiti for the EA video game at issue. That graphic 

artist is an employee of lo Interactive, the developer of the "Freedom Fighters" game, located in 

Copenhagen, Denmark. Presumably, the purpose of this deposition is to determine whether 

the graphic artist had access to Plaintiff's work before creating the "Freedom" graffiti for the 

game. EA denies its artist copied Plaintiffs work, and, as stated in its December 20 letter to the 

Court seeking a pre-motion conference, contends that as no reasonable factfinder could find 

Plaintiffs work and the game graffiti substantially similar, the question of access is academic. 

(Plaintiff counsel's December 28 letter to the Court is devoted exclusively to the issue of access 

and does not address the dispositive issue of lack of substantial similarity.) 

For that reason, EA respectfully requests that the issue of substantial similarity be 

decided before the parties must incur the expense of a deposition in Denmark that is likely to be 

unnecessary. Alternatively, EA respectfully requests that Plaintiff fir.st pursue discovery on the 

question of access by written means before seeking a costly foreign deposition. 

Respectfully submitted, 

Daniel H. Davis / 

cc: John W. Crittenden, Esq. 

Carl I. Kaminsky, Esq. 

135 Ocean Parkway 

Brooklyn, NY 11218 

11 14 AVENUE OFTHE AMERICAS, NEW YORK. NY 10036 T: (212) 479-6000 F: (212) 479-6275 WWW.COOLEY.COM 

Case 1:07-cv-05760-RMB Document 18 Filed 01/04/2008 Page 2 of 2