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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

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					        IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
                IN AND FOR MIAMI-DADE COUNTY, FLORIDA

JOHN B. THOMPSON ON BEHALF
OF THE STATE OF FLORIDA,

                            Plaintiff,

v.                                           CASE NO. 06-16311, Judge Ronald Friedman

WAL-MART STORES, INC.,
TAKE-TWO INTERACTIVE
SOFTWARE, INC., and GAMESTOP, INC.,

                            Defendants.

           MOTION TO COMPEL DISCOVERY AND NOTICE OF HEARING
                            THEREON

       COMES NOW plaintiff, an attorney, on his own behalf and on behalf of the State

of Florida as authorized by Florida Statute 60.05, and moves this Court to compel

discovery herein, with a hearing thereon to be heard before Judge Friedman in the

Miami-Dade Courthouse, 73 West Flagler, 13th Floor, Miami, Florida 33130, at 1:30 PM

this Friday, October 13, 2006, stating:

       1. On September 15, 2006, a full twenty-eight (28) days ago, plaintiff served on

defendant and its counsel the attached Request for Expedited Production of Tangible

Item. The item sought to be produced was a copy of the video game Bully. Thompson

had asked for it for months, in writing, as well as in the initial Complaint herein filed on

August 15, 2006.

       2. Defendant has interposed no objection thereto with this Court to the attached

Request.

       3. Since then, plaintiff has repeatedly offered to all defendants the opportunity to

produce the game in exchange for canceling the October 11 hearing, wanting to be able to



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base the relief he was seeking upon the best evidence of the problem sought to be

remedied. Defendants would not even respond to the repeated offer. Plaintiff will leave

to others the professionalism of that behavior.

          4. What defendant Take-Two has done, however, is produce this item to

countless entities outside Take-Two other than the very person who requested it. Take-

Two has provided the game to numerous video game magazines and commercial video

game sites, who receive advertising dollars from Take-Two, so that they would write and

publish fawning “reviews” of the game remarking, most importantly for contrived public

relations purposes, how “non-violent” is this game that cannot, without violating a

criminal statute, be sold to anyone under 15 years of age in the United Kingdom.

          5. Take-Two even showed portions of the game to the general public at the

gigantic E3 convention is Los Angeles more than a year ago. Any argument that Take-

Two’s constitutional rights are violated by producing Bully to plaintiff when it has

displayed it to so many people outside Take-Two is at best disingenuous and at worst

absurd.

          6. Defendant Take-Two has even produced this game, which is at the core of this

case, to this Court, while at the same time complaining to this Court that the Court’s

request is “prior restraint,” violative of the First Amendment to the United States

Constitution, and so forth. Take-Two threatened this Court, on October 11, with an

emergency appeal to the Third District Court of Appeals. It filed no such appeal. It

produced the game to this Court, further undercutting any plausible argument that it

cannot possibly produce the game to the plaintiff.




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       7. The Court’s order compelling production of Bully was appropriate, given what

is already in the public domain about the game, what is known about the US

government’s findings about Take-Two fraudulent hiding of game content, and given the

fact that Take-Two waived its right to claim some sort of “secrecy” privilege when it

produced it to people and entitities from LA to New York.

       8. This Court needs to carefully consider that this is the same company that lied

for weeks to the entire nation that it had not placed interactive graphic sex in the Grand

Theft Auto: San Andreas game. This is the company that the US House of

Representatives condemned by a vote of 355-21 for its fraud. This is the same company

whose “Audit Chair” on its Board of Directors quit when it found that Take-Two’s most

senior management, who are all still there, conspired to hide video game content from its

own Board, prompting a letter from that Director to the Securities and Exchange

Commission.

       9. Therefore, does this Court actually believe that this same company would fully

disclose to this Court all that is in this game? Has anyone been put under oath as to

whether what in fact the Court saw, and which the plaintiff was not even allowed to see,

is in fact even in the soon-to-be released version of the game? Has anyone at Take-Two

been put under oath by this Court that whatever it has seen, for however long it has seen

it, is actually fully representative of what is in this game?

       10. The only problem with the Court’s order of October 11 is that the game was

produced to the Court and not to the person who has been requesting for months and also

through a Request for Production in this case 28 days ago—the plaintiff.




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        11. In addition, the Court, in ordering the game’s production to it, assured all

of the parties that it would view the playing of the game to its completion. Has this

promise by the Court been kept?

        12. Plaintiff was present for this viewing, along with the Take-Two wholly

owned subsidiary Rockstar employees who totally controlled the presentation.

        13. Plaintiff is under a gag order not to disclose what transpired therein, and he

will honor that order. He is also under an order not even to refer at the reconvened

hearing on October 13, what he heard and what he saw in that showing, and he is not

even allowed to tell his expert what he heard and saw, by this court’s order. He has

honored that order as well.

        14. But, plaintiff has a right to prove his case. He has a right, prior to the Court’s

ruling on the temporary restraining order, whichever way it may go, to be provided the

best evidence of the content of the game—the game itself.

        15. Plaintiff has a right to have his recognized expert in both bullying and in the

dangers of virtual reality violence—a man who has testified before Congress and the

British Parliament—play Bully this coming weekend and report to the Court, under oath,

what are the dangers to public safety, if any, posed by the game.

        16. If the Court can order the production of Bully to it, then it can order the

production of Bully to him. There is far more reason to provide it to him than to the

Court. Plaintiff has the highest regard for this judicial office and for the person filling it,

but the plaintiff has a right to present has case, not have defendant Take-Two preempt the

case he would make by some sort of controlled screening of its game.




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       17. The attached Request for Production should be complied with, as Bully can be

sent to Thompson from New York by courier for delivery Saturday morning. The game

can then be played and analyzed over the weekend. Dr. Provenzo can then testify to what

he found, under oath, and be cross-examined by those who think they understand so very

fully what is in this game and whether it is harmful to dump this game into a school of

pre-teens.

       18. If the Court is available, a hearing can be held on Monday, October 16, 2006,

before Bully ships that night. Plaintiff will need no more than an hour to make his case.

       19. What the Court should not do is base its TRO ruling, which may affect the

safety of millions of children, whose safety is more important that the bottom line of a

company that has sold 60 million units of Grand Theft Auto games at $50 a pop ($3

billion gross revenue, whose safety is more important than the bottom line of a company

named Wal-Mart, among whose corporate officers are five of ten richest men on the

planet. In point of fact, the video game magazines whose “reviews” Take-Two’s lawyer

has submitted as “evidence” of what is in this game, say that with each day of controvery

over Bully, plaintiff Thompson makes Take-Two more money.

       20. What, then, is the harm in allow Thompson to see a game which Take-Two

flaks say he is wonderfully promoting? Will the entire video game industry collapse if

Take-Two’s and Wal-Mart’s and GameStop’s lawyers must hold their breath for three

more days? The better question is this: Will our schools be safer if this bullying

simulator is dumped into them or less safe? We live in an age where money trumps lives,

and that is precisely why this action has been filed.




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       21. Any viewing of a game for one hour that takes 100 hours and basing a

decision thereon, is akin to viewing the opening credits of a Hollywood movie and

declaring it either an Oscar nominee or utter trash without seeing the movie.

       22. There are things in this game that Thompson did not know that he now knows

that are utterly appalling. He has a right, in trying to make his case, to share that with his

expert, but he is operating under a gag order not to. This is simply not fair.

       23. Any description by Take-Two/Rockstar employees as to the harmlessness of

the game is testimony provided to this Court, not under oath, but testimony nevertheless,

with no opportunity whatsoever by plaintiff to cross examine these witnesses. It would

be equally unfair if plaintiff were to have the Court sit down with his expert, Dr. Eugene

Provenzo, and have Dr. Provenzo give the Court his “take” on this game with no

opportunity for cross examination by the defendants.

       24. If this Court has engaged in prior restraint and unconstitutional interference

with Take-Two’s alleged extra-constitutional “right of secrecy,” then that horse is already

out of the barn. Does Take-Two have a right, in spite of the nuisance laws of this state, to

sell violence/bully simulators to other people’s nine-year-olds?

       25. In point of fact, absolutely no harm will be done to defendant Take-Two if

plaintiff gets this game on Saturday, analyzes it, and then presents his case on Monday.

       26. This Court has the power, and plaintiff whole-heartedly submits to it, to

punish plaintiff and his expert with criminal contempt if either one of them should utter a

word to any other soul what is in Bully prior to its release other than to this Court in

proceedings that are either in camera or open.




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       27. Plaintiff challenges the defendants, most notably Take-Two, to enunciate

what harm will be done to its interests if plaintiff gets to see the same game that the Court

has seen, by its unappealed Order, but with the freedom and the right to see it in its

entirety? Plaintiff respectfully asks the Court: What earthly harm is done to Take-Two if

he is allowed to present his case—the case he brought on behalf of the State of Florida?

       28. The answer is this: NONE. What harm, however, might be done if plaintiff is

prevented from proving his case and if the Court denies the TRO without hearing the

plaintiff’s case? The Court, and the defendants, can better answer that question by

talking with six parents in Paducah, more than twenty parents in Littleton, Colorado, the

families of those killed just last month in Montreal by a video gamer who trained on

Super Columbine Massacre. There are many people who could tell this Court the harm

that might be done if a game officially found to be “violent,” even by the ESRB which

didn’t play the game, is released to children of all ages on which to rehearse how to

“bully back” at the bullies.

       29. If these millions of units of Bully are shipped Monday night, October 16,

then that horse will be truly out of the barn. What good might a subsequent permanent

injunction be then? What would be the point. The nuisance will have been unleashed

into the pre-teen and teen video gamer market. Once the toxin is dispersed into the air, it

is in the air. And what will the next school violence simulator be like, if there is no full

and fair hearing as to this one before its release?

       30. Finally, attached hereto is a BBC news story about this controversy and this

lawsuit. The BBC is one of the largest, most influential news organizations in the world.

Take-Two’s counsel has asked this Court to consider as evidence fawning video game




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reviews at magazines that receive money from Take-Two. If the Court is going to

consider those, then it should consider what is today being reported by the BBC, which is

a respected news organization. It is this:

       31. Remarkably Take-Two has provided a copy of this game, Bully, to this huge,

worldwide news organization, while refusing to give a copy of it to one lawyer.

       32. Secondly, note the following reportage in the attached article, including the

admission by Take-Two of the violence in the game and the bizarre justification of it:


Fighting forms a large part of the title but the developers said it was
displayed like a "cartoon or Popeye fight".

He said: "There's no blood at all in the game. There's no physical damage.

"Nobody dies in the game. There are no guns."

But the main character can use dustbin lids and baseball bats to hit other
children in the school.

He said: "Anyone over 15 knows that hitting someone with a baseball bat is
going to cause serious head injury and would not copy it just because they
saw it in a video game.

"I'm pretty sure no parent will be giving this to their five-year-olds."

       33. First, in response to the above, testimony at a full and fair hearing on this

matter, can be provided to the Court that the bloodless violence will more quickly modify

behavior in younger people than would gory violence.

       34. Secondly, the Court should consider as useful that the Take-Two spokesman

says “anyone over 15 knows that hitting someone with a baseball bat is going to cause

serious head injury…” This game is going to be shipped out to be sold with an advisory

on it that it can be safely sold to anyone 13 or older, not 15 and older. Also, the

representation to this Court by Attorney Ward of Blank Rome that there is going to be

some sort of age verification by retailers when a 12-year-old presents at a cash register to


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buy Bully is utterly false. No retailer in America checks the age of a buyer of a “Teen”

game. Note the lie, then, by the Take-Two spokesman: Bully will be “out of reach of

people who are unable to draw a distinction between what’s real and what’s fantasy.”

That statement is patently absurd. All of the science, of which this Court has heard none,

proves that kids in their teens are, in the words of Bill Gates “transported to a world that

they think is real.”

        35. Finally, as to the BBC’s coverage, the Court must note that, according to the

BBC “Fighting forms a large part of the title…the main character can use dustbin lids and

baseball bats to hit other children in the school.” Further, apparently the BBC did not get

to the slingshot mayhem and the heads in the dirty toilets.

        36. Plaintiff has a right to prove his case, which he cannot do without his

expert’s play and review of the game itself. This case must be won or lost based upon the

merits of the case, not based upon one side’s contrived presentation by paid employees of

the defendant of a mere fraction of the game. Take-Two is a company with a history of

game content fraud, as that fraud has been sanctioned by the United States government.

        WHEREFORE, plaintiff moves this Honorable Court for an Order directing Take-

Two to produce Bully to him by courier the morning of Saturday, October 14, 2206, for

the purpose of conducting a hearing on the TRO this coming Monday, with the Court also

ordering Thompson and Provenzo, under threat of a criminal contempt, to tell no one

what they find.

        I HEREBY CERTIFY that on October 12, 2006, the undersigned provided this

Motion by fax transmission to counsel for defendants Take-Two and GameStop at 12

midnight,




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_____________________________
JOHN B. THOMPSON, Attorney
Florida Bar #231665
\




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