WILLIAM SILVERSTEIN, Plaintiff/Counterclaim-Defendant

v.

MICROSYSTEMS SOFTWARE, INC.,  THE LEARNING COMPANY, INC., Defendants/Counterclaim-Plaintiffs

MOTION FOR LEAVE TO RESPOND TO SUMMARY JUDGMENT OPPOSITION 

William Silverstein, the Counterclaim-Defendant in this action, hereby asks leave to file the accompanying response to the materials submitted by the Counterclaim-Plaintiffs, Microsystems Software Inc. ("MSI") and The Learning Company ("TLC") in opposition to the motion for summary judgment.

As grounds for this motion, Silverstein submits that those opposition materials contain knowing misrepresentations of the state of the record, and of the materials provided to counsel to MSI and TLC, that cannot be allowed to go unanswered. ⁽¹⁾ To be specific:

(1) At footnote 2 to the MSI/TLC response to the statement of facts (on page 4 of that document), they assert that:

² Silverstein never verified that he underwent three-weeks of intensive treatment in China. MSI understands that while Silverstein may have used the three weeks to travel to Asia, he devoted little of his time there to obtaining treatment of his alleged condition. Indeed, in electronic correspondence with others, Silverstein stated that he spent only three days receiving treatment. See Exhibit H. In his deposition, Silverstein stated that he spend several days recovering from the treatment and 5-6 days sightseeing and arranging for his visa. See Silverstein Deposition, Vol. 3, pp. 72-81 (attached as Exhibit G to Silversteins exhibit volume).

This is, not to put too fine a point on it, falsehood upon falsehood: (A) Counsel to MSI and TLC has been in possession of copies of William Silverstein's Chinese medical records--and an English translation of those records--since the Spring of 1997. They were produced to that attorney again in June of 1999 in response to MSI and TLC's first request for production of documents, and Silverstein was questioned about the course of his treatment in China at his deposition in the passage they cite in that footnote. The medical records, and his testimony, set forth the dates of his two weeks of daily treatment at a hospital in China, October 7-11 and 14-18, 1996.

(B) MSI and TLC did not attach the pages from Silverstein's deposition they relied on in their footnote, falsely alleging that they were part of Silverstein's motion package. They were not, and MSI and TLC knew that. Had they attached those pages (they are attached hereto, as Exhibit 1) they would have given the lie to their insinuation that he never "verified" that he had received more than a few days of treatment in China, as he narrated the dates of his two weeks of treatment in China. See page 78, line 22 through page 80, line 8. (The Chinese medical records, and their English translation, are attached hereto as well.) ⁽²⁾

(2) An even riskier misrepresentation of the record is found in their fragmentary quotation from the log kept by Mason to monitor Silverstein's activities, since that was something that was included in the motion package:

At paragraph 37 of the Silverstein's Statement of Material Facts. a passage from that log--which was included as Exhibit O--was relied upon as support for Silverstein's statement that

37. MSI, through defendant Mason, then took the office keys that were in the possession of the plaintiff, advising the plaintiff that to allow him to retain office keys would constitute impliedly agreeing that he could work on weekends--which Mason said MSI felt would be detrimental to the plaintiff's condition.

MSI and TLC dispute that in their Response (at page 5) by both (1) misquoting the sentences in that passage preceding part of the passage relied upon, adding a not in the second sentence before the words "to take weekends off" (reversing its meaning), and (2) substituting " . . . " for the italicized words in the passage, which reads, in full, as follows:

"9/19 arrived 930 after massage therapy. Told him I wanted his keys because we have a weekend coming up and he has to date ignored my instructions to take weekends off. He indicated the note he gave me Monday from his doctor said weekend were ok. I said we had never asked him to trade off full days vs weekends but instead let him get off keyboard (eg note answered question we hadn't asked). Told him I didn't want to be interpreted as tacitly approving weekends. Said he didn't have keys with him, told him to bring them in tomorrow (fri). Gave me keys that afternoon."

(See Exhibit O in Supporting Exhibits volume.)

MSI and TLC make a novel argument that MSI, as the publisher of a nationally-famous program, "CyberPatrol,"" which also sold adaptive software for the handicapped under the name "HandiWare," ⁽⁵⁾ was not a public figure with respect to its treatment of an employee who was requesting accommodation for a handicap. That issue--and all issues about MSI--is mooted by the abandonment of the MSI brand name after the acquisition by TLC, in the same way other brand names have been discarded in the name of corporate ego. ⁽⁶⁾

TLC can't claim to have been involuntarily thrust into the limelight--Silverstein had been complaining about his treatment by MSI on his web site for about a year before TLC bought MSI, so TLC had plenty of notice of what it was getting itself into by buying MSI.

In any event, it's a bit late in these proceedings for these parties to now deny that they are public figures, since they pled their libel claim as public figures, alleging, in the last sentence of paragraph 9 of that claim, that

"9.  Through the published statements about them contained in Silverstein's website, MSI and TLC have been exposed to public hatred, ridicule or contempt in a considerable and respectable class in the community. These statements have been made and published recklessly or with actual malice" [emphasis added]

That allegation was worded precisely to meet the burden imposed on public figures, They cannot now turn around and deny that it applies.

Finally, MSI and TLC argue that it was improper for Silverstein to have pulled aside the curtain and shown this Court the real reason for their prosecution of this counterclaim, arguing that negotiations are never admissible.

While offers to settle and pay damages cannot be used as an admission of liability, the use of a lawsuit to attempt to obtain a form of relief that is not an available remedy under the law constitutes malicious abuse of process (as briefed in the memorandum in support of summary judgment). This exceeds the privilege for legitimate settlement negotiations, and is instead admissible as proof of abuse of process, in the manner described by the Supreme Judicial Court in Ladd vs. Polidoro, 424 Mass. 196 (1997):

"The ulterior motive may be shown by showing a direct demand for collateral advantage; or it may be inferred from what is said or done about the process."

[424 Mass. at 198, quoting W.L. Prosser & W.P. Keeton,
Torts § 121, at 899 (5th ed. 1984)]

A "direct demand for collateral advantage" cannot be kept out of evidence by presenting it in the form of a proffered "Settlement Agreement."

MSI and TLC suggest that their ultimate payment of the judgment--a week after service upon them of this summary judgment package--renders complaint over their efforts to bully Silverstein into an unconstitutional agreement moot. However, that it is necessary to continue to litigate this counterclaim shows that it is not.