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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 00-3893
WILLIAM SILVERSTEIN,  Plaintiff)
v.)

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC., and
MATTEL, INC.,

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)
)
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WILLIAM SILVERSTEIN'S INITIAL REQUESTS
FOR ADMISSIONS OF FACTS TO ALL PARTIES

Pursuant to Rule 36, William Silverstein requests that each defendant admit the truth of the matters set out below, and the genuineness of the documents specified below, for the purposes of this action.


Instructions
  1. Rule 36(a) provides that each matter requested to be admitted is conclusively established and admitted for the purposes of this action unless, within 30 days after service of this Request (except that if you are a defendant you have until 45 days after service of the summons and Complaint on you, if that is later than 30 days after the service of this Request), you serve upon the party making these requests either:
    1. a written statement signed by you under the pains and penalties of perjury specifically:
      1. denying the matter, or
      2. setting forth in detail why you cannot truthfully admit or deny the matter; or

    2. a written objection addressed to the matter, signed by you or your attorney.
  2. You may not give lack of information or knowledge as a reason for your failure to admit or deny unless you include in your written response a certification that you have made reasonable inquiry and that the information known or readily obtainable by you is insufficient to enable you to admit or deny. Your inquiry is "reasonable" only when:
    1. you examine any and all documents or tangible things in your possession, custody, or control that in any way refer or relate to the matter requested to be admitted, and,
    2. you make inquiry of your principals, agents, employees, attorneys, representatives, any persons acting or purporting to act on your behalf, and any other persons in active concert and participation with you, whether past or present and without regard to whether or not their relationship with you currently exists or has been terminated.
  3. Rule 36(a) requires that any denial by you of a matter requested to be admitted must fairly meet the substance of the requested admission and that when good faith requires that an answer be qualified or a part of the request be denied such qualification or denial must be specific and admit that part of the requested admission that is true. It is not a sufficient answer that a request presents a genuine issue for trial. If you deny any matter requested to be admitted and the truth of the request is eventually proven at trial, Rule 37(c) provides that you may be ordered to pay to the requesting party the reasonable expenses incurred in proving the matters requested to be admitted, including reasonable attorney's fees. Each denial of a request for admission must be made under the pains and penalties of perjury.
  4. You are required, if you object to any request on the grounds of privilege, work-product, trade secret, or any other grounds, to state for each such objection the precise nature of the objection made and a complete description of all facts upon which you or your counsel rely in making the objection.
  5. Pursuant to Rule 36(a), to the extent that you do not entirely dispute the authenticity of a copy of a document, but dispute specific aspects of the copy, such as differences in format or the presence, absence, or difference of notations or signatures from a copy the you would be willing to admit as genuine, please set forth what aspect or aspects of the copy is not admitted as genuine.
  6. Rule 36(a) requires that each admission, denial, objection, or statement shall be preceded by the request to which it responds.
  7. You are specifically requested pursuant to Rule 26(e)(3) to seasonably supplement all of your answers to these requests to include any information acquired by you after the date of your answers.

REQUESTS FOR ADMISSIONS OF FACTS

  1. The web site about which the parties brought the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820 discussed William Silverstein's claims against them in that lawsuit.
  2. The allegations made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were statements of opinion.
  3. The allegations made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were labeled as opinion.
  4. The allegations made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were accompanied by truthful statements of fact based upon which a reader could evaluate the validity of the complained of allegations.
  5. In December of 1996, shortly after the plaintiff had started to discuss his treatment by Microsystems Software, Inc. on his web site, Richard Gorgens, an official of Microsystems Software, Inc., wrote to him demanding that he remove unspecified defamatory materials from his web site.
  6. Although the plaintiff responded by asking what was he saying that was factually incorrect, the only response he ever got to that inquiry--beyond an acknowledgment of having received it--was the filing of the libel counterclaim in December of 1998.
  7. Prior to the filing of suit by William Silverstein in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, Microsystems Software had been acquired by The Learning Company, Inc., and was, at the time of the filing of that suit, being run as an integrated part of The Learning Company's operations, by the same individuals that ran The Learning Company, Inc.
  8. On September 13, 1999, judgment was entered in William Silverstein's favor on his claims in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820.
  9. Prior to the entry of the September 13, 1999 judgment in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, The Learning Company, Inc. and Microsystems Software, Inc. had been acquired by Mattel, Inc., and The Learning Company and Microsystems Software were, at the time of the entry of that judgment being run as integrated parts of Mattel, Inc.'s operations, by the same individuals that ran Mattel, Inc.
  10. The statements made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were known to be true by those controlling the prosecution of that counterclaim by September 13, 1999.
  11. The statements made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were known to be true by those controlling the prosecution of that counterclaim by January 2000.
  12. The statements made by William Silverstein that were complained of in the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, are presently known to be true by those controlling the prosecution of that counterclaim.
  13. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by September of 1999, that William Silverstein believed that the statements of his that were complained of in the libel counterclaim were true.
  14. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by January of 2000, that William Silverstein believed that the statements of his that were complained of in the libel counterclaim were true.
  15. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by September of 1999, that there was no basis for asserting that William Silverstein was negligent in believing that the statements of his that were complained of in the libel counterclaim were true.
  16. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by January of 2000, that there was no basis for asserting that William Silverstein was negligent in believing that the statements of his that were complained of in the libel counterclaim were true.
  17. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by September of 1999, that there was no basis for asserting that William Silverstein acted with actual malice by making the statements complained of in the libel counterclaim with knowledge of their falsity or with reckless disregard of their truth or falsity.
  18. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by January of 2000, that there was no basis for asserting that William Silverstein acted with actual malice by making the statements complained of in the libel counterclaim with knowledge of their falsity or with reckless disregard of their truth or falsity.
  19. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by September of 1999, that they could not show any loss of money or business as a result of the statements complained of in the libel counterclaim.
  20. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by January of 2000, that they could not show any loss of money or business as a result of the statements complained of in the libel counterclaim.
  21. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by September of 1999, that they could not show the taking of any steps to mitigate any loss of money or business as a result of the statements complained of in the libel counterclaim.
  22. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, knew, by January of 2000, that they could not show the taking of any steps to mitigate any loss of money or business as a result of the statements complained of in the libel counterclaim.
  23. The parties controlling the prosecution of the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, continued to press that counterclaim—after the plaintiff accepted their offer of judgment in that lawsuit—in order to restrain his criticisms of them.
  24. At the hearing on William Silverstein's summary judgment motion against the libel counterclaim, when the motion judge asked counsel for the parties controlling the prosecution of that claim what the plaintiff had publiished that was libelous, their counsel responded by saying that the plaintiff had claimed that he had been fired when he went to the hospital but then told the judge that his clients wanted to let everyone get on with their lives and wanted to dismiss the counterclaim.
  25. In September of 1999, litigation decisions for the parties that brought the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were made or controlled by Mattel, Inc.
  26. In January of 2000, litigation decisions for the parties that brought the libel counterclaim in Silverstein v. Microsystems Software, Inc. et al., Middlesex Superior Civil Action No. 98-4820, were made or controlled by Mattel, Inc.

 

Respectfully submitted,

WILLIAM SILVERSTEIN
By his attorney,

Philip R. Olenick
BBO No. 378605
101 Tremont Street -- Suite 801
Boston, Massachusetts 02108
(617) 357-5660

October 23, 2000