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Bragg v. Linden Lab CaptionIn the Bragg v. Linden Lab case (see VB’s previous coverage for background) defendants recently served interrogatories and document requests on plaintiff Marc Bragg. The interrogatories are available here, and the document requests are here (both of these documents are .pdf files). Linden Lab also recently filed amended counterclaims (available here (.pdf)) that shed more light on the mechanism Bragg allegedly used to buy land, and further explicate Linden Lab’s allegations of a fraudulent conspiracy between Bragg and other users.

Just as with Bragg’s last substantive filing against Linden Lab, I must point out that litigation documents put the side the drafted them (this time, Linden Lab) in the best possible light, and the other side in the worst. Litigation documents are, by their very nature, completely one-sided. So, as before, I must caution readers to avoid rushing to judgment based only on pleadings.

Incidentally, for non-litigators, “interrogatories” are questions that the recipient must (generally) answer, and “document requests” are formal requests for copies of electronic and paper documents that the recipient must (generally) comply with.

Highlights from these documents and limited commentary below.

Linden Lab’s Interrogatories and Document Requests to Bragg

As an initial matter, it is interesting that these are available to us at all. Few courts require that interrogatories or document requests be filed with the Court unless a dispute arises involving compliance, so they are not usually available to the public. Bragg has made Linden Lab’s requests available on his website, however. I hope that his responses, as well as any interrogatories sent by Bragg to Linden Lab, will also be posted.

Linden Lab asks Bragg to respond to eighteen seperate interrogatories. Most are fairly typical interrogatories that seek information that will give Linden Lab a clearer picture of Bragg’s case before motions for summary judgment and trial. One note that may provide a clue as to Linden Lab’s core strategy here: a high percentage of the requests are directed to the specific nuts-and-bolts basis for Bragg’s claim that Linden Lab fraudulently offered “ownership” of virtual land.

Here are a few of the more interesting interrogatories. Note that the words in all capital letters below have been specifically defined by Linden Lab in these interrogatories — in other words, Linden Lab isn’t doing it for emphasis, it’s a lawyer thing.

IDENTIFY with particularity all alleged misrepresentations by Defendants on which YOU personally and actually relied, and as a result of which YOU were damaged, as alleged in the COMPLAINT, stating the time, place, manner, and maker of each alleged misrepresentation.

For each alleged misrepresentation identified in YOUR response to the preceding interrogatory, state with particularity all facts supporting YOUR contention that the alleged misrepresentation was false or misleading at the time it was made.

For each alleged misrepresentation identified in YOUR response to Interrogatory No.1, state with particularity the circumstances of YOUR alleged reliance thereon, including without limitation when YOU became aware of the representation and what you did in reliance thereon.

For each alleged misrepresentation identified in YOUR response to Interrogatory No.1, state with particularity the circumstances under which YOU discovered that the alleged misrepresentation was false or misleading.

For each of the items of “virtual property” YOU acquired over the course of YOUR participation in Second Life as alleged in the COMPLAINT, state the purchase price YOU paid for each such item and the amount YOU realized upon the sale of each such item and, if appropriate) each separately-sold portion thereof.

Linden Lab also asks Bragg to provide documents responsive to twenty-five document requests. These, also, are fairly typical as document requests to, mainly seeking financial records regarding Bragg’s economic activity in Second Life, communications about Bragg’s allegations, and any documents Bragg is likely to rely on at trial. Here are a few examples:

Any accounting records, ledgers, spreadsheets) or other DOCUMENTS that refer to, reflect, mention, or discuss YOUR economic transactions in connection with Second Life.

For each item of YOUR ‘virtual property” YOU allege in Count 6 of the COMPLAINT was wrongfully converted by Defendants, DOCUMENTS supporting YOUR calculation of its value at the time of the alleged conversion, and the basis for YOUR valuation.

All DOCUMENTS that refer to, reflect, mention, discuss, or constitute COMMUNICATIONS between YOU and any third party regarding any complaints YOU made about Defendants or the Second Life service.

Linden Lab’s Amended Counterclaims

Linden Lab has also filed an amended set of counterclaims (the original is available here). Aside from cleaning up some typos and changing a few words here and there (e.g. “…to ensure that Bragg was appropriately punished and forever barred from Second Life,” becomes, “to ensure that Bragg was appropriately deterred and forever barred from Second Life,”) the big changes involve how the counterclaims address the way that Bragg bought land. Notably, this document appears to have been filed partially due to the positions taken in Bragg’s motion to dismiss the counterclaims.

On this one, there’s a lot of detail and more text than I want to burden readers with, so I urge interested readers to work through the original document (.pdf), paying particular attention to paragraphs 50 and above in the “Counterclaims” section, to get all the new information. That said, the paragraphs below nicely summarize the majority of the new material.

26. The requirements, procedures, policies, and regulations of Second Life included the information regarding the auction process for purchasing “virtual land” as set forth on the Auction FAQ page and the main auction or “Auction House” page on the Second Life website.

27. The Auction FAQ page explained that “The auctions are located at the Second Life Auction House” and provided a hyperlink to the main auction page on the Second Life website. The Auction FAQ page also explained that users can search for land they may wish to purchase within Second Life using the Second Life map, and that this map “includes land that is planned for auction as well as those parcels currently on the block.” Thus, using this map feature, users could preview the “virtual land” before they bid, and even before the auctions began.

28. The main auction page stated “Welcome to the Second Life auction block. The listings below let you know what land is currently on offer, and new auctions are added frequently.” The page also listed all the parcels that Linden had made available for bidding. Each of the parcels listed on the main auction page had a hyperlink to an “Auction Details” page where a user could make a bid. The Auction Details page would display any other bids that had been made for the parcel.

29. The only way Linden authorized users to bid on parcels of “virtual land” it had offered for sale by auction was by entering a bid on the Auction Details page for a parcel listed on the main auction page.

30. As such, any means of obtaining parcels of “virtual land” to be offered by Linden by auction other than by entering a bid on the Auction Details page for a parcel listed on the main auction page was a violation of section 5.2 of the Terms of Service and contrary to the Auction FAQs, and therefore not authorized by Linden.

Linden Lab also provides more details from chat logs between Bragg and a user it identifies as “User M.S.” (another person involved is referred to below as “User M.S.2″) regarding Linden Lab’s claim that Bragg was involved in a fraudulent conspiracy to buy virtal land using unauthorized means.

52. User M.S. then instructed Bragg and User D.S. that there were “2 rules” to the scheme, namely, “do NOT ge[t] greedy” and “keep prices low so everyone can have a piece” and Bragg agreed, saying “so we don’t bid against you” and “we’ll keep land prices low.” Bragg and User M.S. both acknowledged the need to keep their unauthorized activity quiet, so that Linden would not shut down the exploit and terminate their accounts. Bragg and User M.S. further discussed the possibility of Bragg’s acquiring some of the parcels that User M.S. and User M.S.2 had already acquired using the scheme.

53. In their online chat on April 29, 2006, User M.S. also discussed how the parcels acquired in the scheme would be liquidated. Bragg asked User M.S. “how much do you and [User M.S.2] want for” the “sim,” and User M.S. stated “we’re asking a few of the [other Second Life users] for just under $900 us… they still think they go 4 $1000US.”

54. On information and belief, based on the statements he made during the abovereferenced communications with User M.S. and User D.S. on April 29, 2006, Bragg knew that
the scheme User M.S. had introduced to him would harm Linden, by enabling the participants to acquire “sims” for far below U.S. $1,000.00, which Bragg knew was the minimum opening bid
for auctions. On information and belief, based on the statements he made during the abovereferenced communications with User M.S. on April 29, 2006, Bragg agreed with User M.S. that
the above-alleged wrongful acts be committed, and Bragg further gave his cooperation and assistance to the scheme by, among other things:
(a) Offering to purchase parcels User M.S. and User M.S.2 acquired in the scheme,
(b) Agreeing not to bid against User M.S. and User M.S.2,
(c) Entering a bid as instructed by User M.S. for the Mul “sim,”
(d) Agreeing not to tell others about the scheme,
(e) Agreeing not to “get greedy” (in order to minimize the chance that Linden would shut down the scheme and take disciplinary action), and
(f) Agreeing to keep prices low so that all of the conspirators could profit.

55. Accordingly, on this basis, on April 29, 2006 Bragg joined an existing conspiracy between User M.S. and User M.S.2 to obtain something of value from Linden by fraud.

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12 Responses to “Bragg v. Linden Lab Update: Linden Lab Serves Discovery, Amends Counterclaim with Chat Logs”

  1. on 20 Aug 2007 at 7:14 pmFlipperPA Peregrine

    Those chat log excerpts certainly look damaging to Bragg’s claims; one has to wonder why he didn’t use a non-Linden Lab messaging service, since by the content of his comments, it seems fairly clear they knew what they were doing was using an exploit that was against the rules.

  2. on 21 Aug 2007 at 8:13 amKate

    anyone else find it interesting (and by that I mean creepy) that Linden can pull up private chat logs from over a year ago? I guess it’s a librarian thing, but I’m used to purging any records we don’t need for our business immediately. I’m sure some of ours might be recoverable with specialized data recovery methods, but I get the feeling that such weren’t necessary for Linden Lab here.

    I know it’s part of a bigger issue, such as your search history on Google etc, but in the MMO context I know quite a few people who would be concerned about some of their more “personal” conversations being archived by someone else indefinitely.

  3. on 21 Aug 2007 at 9:36 amBenjamin Duranske

    Yeah, I do find it creepy. It’s also, from a litigation perspective, not necessarily the best idea to just keep every scrap of data forever. Most companies have retention policies (that come from the legal department) for this kind of thing, and if there’s no business or legal reason to keep something, they get rid of it. It’s better for business (less money on storage space) and while maybe it worked out well for them this time in litigation (remains to be seen) there could well come a time when it didn’t.

    I do wonder if they just kept Bragg’s though, since he was making lawsuit noises very quickly after they banned him.

  4. on 21 Aug 2007 at 12:33 pmCyn Vandeverre

    If I were a company that needed to ban people, I’d keep thorough records on those people, but probably purge all the random chatlogs from non-banned people on some schedule.

  5. on 23 Aug 2007 at 11:33 amEloise

    Although I can’t find a reference to it at the moment, I believe they normally keep records for a month. Certainly I’ve had an AR being declined on the grounds that “We don’t keep records for that long” before.

  6. on 23 Aug 2007 at 11:59 amBuhbuhcuh Fairchild

    LL’s chat logs are purged after a few weeks, however, when a user enters a legal dispute with the company, they tend to hold on to what they have. The logs in question were not just pulled up now, but have been saved specifically because there was a reasonable chance they would be used in this dispute.

  7. on 23 Aug 2007 at 12:18 pmTony

    I’m guessing that they filed the logs as soon as they enforced their policy in case of a suit. I’m pretty sure people knew Bragg was going to file suit shortly after this occurred, and that is probably why they still have them on hand.

    I agree with Cyn, if they were going to take action against someone, I’ll bet they file some kind of report with evidence in case a legal case comes up.

  8. on 23 Aug 2007 at 10:58 pmUntameable Wildcat

    They’re required by the PATRIOT act to keep any and all records for a period of 24 months; all companies that store computer records about individuals are. It wouldn’t have been any problem to them to freeze any records relating to this even longer, though I must admit the section where Bragg requires Linden to produce (section 110): “Documents sufficient to identify each purchaser of virtual land from defendant Linden” boggles my mind, in that no start or finish period dates are given, and I therefore read that as asking for ALL documents, on ALL land purchase transactions since Second Life first entered release!

    That’s a HELL of a mountain of paperwork for someone…

  9. on 23 Aug 2007 at 11:22 pmBenjamin Duranske

    Untameable – thanks for the comments. I hear you here. Litigation is really messy, and there are a lot of ways to approach it, some better, and some worse. I may be able to shed some light on doc request #110 (you’re referring to this post). Like it or not, a lot of litigators send out doc requests that don’t appear to really be realistic. I’ve always tried not to, but it’s a judgment call, and the reality is that it happens all the time.

    What happens after a really broad request shows up is that the other side objects six different ways (too broad, not reasonably calculated to lead to the discovery of admissible evidence, overly burdensome, vague, violative of third party confidentiality agreements, irrelevant, and several others spring to mind here… and I’m rusty) and then that side sends over whatever documents it feels are actually relevant in response to the request. Then if the guy that sent the request really feels like he is entitled to more, he has to ask the court to make it happen (that’s a “Motion to Compel.”)

    This sounds absurd, I’m know, but it makes a certain kind of sense. The idea is that lawyers on both sides will take the strongest position they can even plausibly take, and then it’ll work itself out.
    Here, Linden Lab will certainly argue that it only has to provide documents that are relevant to this case, and I’d be extremely surprised if, at the end of the day, they turned over anything even approaching the bredth of request 110.

    As for the PATRIOT act, I can’t stand it, but I don’t think it says what you said it does. I think it’s one of the worst laws we’ve ever passed, but I can’t find anything in it that says companies have to store computer records for 24 months. I could be wrong (it’s a monster of an act) so if you have a citation let me know. But I just don’t think that’s accurate.

    You know, I’d really love to see what Linden Lab’s document retention policy actually is, and I imagine a lot of other people would too. I’ve heard everything from “a few weeks” to “years” as to how long they keep chat logs.  If I were them, I’d do what Cyn suggested above — purge everything fairly quickly, but hang on to the logs of anybody they ban in case of litigation.

  10. on 23 Aug 2007 at 11:42 pmUntameable Wildcat

    Personally I’d archive most of the stuff I ever thought would be important onto DVDs. Compressed, there is a lot of room to store a lot of data on those things, and even serverside chat records might be manageable relatively cheaply doing it this way. But yes, I too would love clarification on their official document retention policy.

    I did have notes on where I saw the two years, but can’t find them right now. My (sometimes poor) memory can’t remember if it was the PATRIOT act itself or some amendment proposed or passed to the Electronic Communication Transactional Records Act 1996. I’ll see if I can find my notes when I get back from the vacation I’m starting tomorrow, I did make extensive notes because of how it related to the age verification issue in Second Life that seems to have all but disappeared following the enormous user outcry.

  11. on 24 Aug 2007 at 12:00 amBenjamin Duranske

    Untameable – let me know what you find. I’ve been digging the last twenty minutes because your comment made me curious, and I haven’t found anything yet, but I’ve seen crazier things codified. Have a good holiday.

  12. [...] Plaintiff Marc Bragg has filed a new Rule 12(b)(6) motion to dismiss (.pdf) regarding Linden Lab’s counterclaims against him, and a supporting brief (.pdf). Some readers will recall that Bragg already filed a 12(b)(6) motion but after he did, Linden Lab amended its complaint. The amendment added quotations from chat logs that shed light on Linden Lab’s claim that Bragg used an exploit to buy land in violation of a California criminal law prohibiting unauthorized computer access for fraudulent purposes. Bragg’s new motion amplifies points made earlier, and addresses this material. [...]

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