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Key documents unsealed in Activision Call of Duty trial

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In summer 2009, Thomas Fenady was recruited for a secret mission called Project Icebreaker. Fenady, who maintains the computer systems for a major corporation, was instructed to hack into the email accounts of two employees and "dig up dirt" but "don't get caught doing it," even though the directive came from the highest levels of the company.

The narrative reads as if it came straight out of a spy novel or a movie script. But it is a court document for a case involving Activision Blizzard Inc. and its multibillion-dollar Call of Duty military shooter franchise.

Recently unsealed by Los Angeles County Superior Court Judge Elihu Berle, the document is one of thousands submitted over the last two years in a bitter dispute between Activision and 42 game developers who initially created Call of Duty.

The case is scheduled to go to trial May 29, but Berle is expected to decide Wednesday afternoon whether to grant an Activision request for a 30-day postponement in order to let the company's new lawyer, Beth Wilkinson, get up to speed on the case.

The vast majority of the documents have been sealed by the court or severely redacted, but as the case nears trial, some have been made public.

One document details the testimony of Thomas Fenady, Activision's former senior director of information technology. In it, Fenady is quoted as having testified that Activision's in-house attorney, George Rose, asked him to "dig up dirt" on two of the lead plaintiffs, Jason West and Vincent Zampella, by secretly accessing their work emails, voicemails and computer files.

The objective of "Project Icebreaker" was to build a case for firing West and Zampella, Fenady testified.

Fenady testified that he expressed concern about the project but was told, "Don't worry about the repercussions." Fenady found an outside company, InGuardians, who also balked at the task because of "legal hurdles." Stymied, Fenady approached the company's Facilities Department and talked about staging a "fake fumigation" and a "mock fire drill" in order to get West and Zampella away from their computers long enough to copy files on their computers. 

Ultimately, Activision did none of those things. Activision declined to comment on the documents, as did attorneys for the developers.

Although this testimony may make for good reading, two other unsealed documents are more likely to draw most of the jury's attention during the trial: a bonus plan from the developers' initial agreement in 2003 and a 2008 memorandum of understanding that extended their 2003 contract. Together, the documents form the foundation of the contract Activision signed with West and Zampella and, indirectly, with the 40 other plaintiffs who worked on Call of Duty.

The contracts lay out how much Activision should pay the developers in royalties and bonuses. They also grant West and Zampella creative freedoms and controls with regard to the Call of Duty franchise.

The 42 game developers have argued that the contract entitles them to hundreds of millions of dollars in royalties and bonus payments. Activision has countered that the developers are not entitled to the money because they breached the contract.

Who's right? You can read the documents and come to your own verdict.

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