Judge Wendy Chang skips justice day (plus new testimony)

Oh, how I was so wishing that image today would be Judge Wendy Chang as the T-1000, terminating Billy Mitchell’s vindictive Donkey Kong lawsuit full of lies. But alas, it was not to be. The motions discussed in our last update were heard on the morning of Thursday, September 28th, resulting in the following ruling handed down by Judge Chang:

https://perfectpacman.com/wp-content/uploads/2023/10/Legal-Billy-vs-TG-2023-09-28-Court-Minute-order-on-discovery-and-contempt.pdf

All motions denied, across the board. We’ll get into exactly what that means in a moment. At least with regard to the more serious matters, the ruling was “without prejudice” – in other words, “not final” – which means TG’s lawyer can refile those same points again later. I’ve heard opinions on this ruling ranging from “Did she even read the filings?” all the way to “Judge Chang is on top of this, she wants TG to refile the motion so she can dismiss the case properly”, with a few opinions in between. But speaking strictly for myself, regardless of what Judge Chang’s intentions may be, this was just a bad ruling, which enables further abuse of the court, and which unnecessarily prolongs a baseless lawsuit that desperately needs to be put to rest.

However, not everything about 9/28 was negative for Team Truth. Today we’ll review the pros and cons, we’ll discuss the implications this has for what constitutes acceptable behavior in the court of Wendy O. Koopa (obligatory Mario reference), and as a bonus, we’ll get treated to some more of that evidence I know you all love to see.

PLAQUE IN TIME

We’re not going to get into all the backstory today on disgraced gaming cheater Billy Mitchell, his fabricated fantasy of being the greatest Pac-Man player, his provably fake Donkey Kong tapes, and the many lies he’s told to cover for the old ones. I’ll provide a few linked reminders of previous installments where necessary. But we will briefly brush everyone up on Billy’s latest bout of evidential fakery.

For years, Billy had claimed that game publisher Namco in Japan had granted him the title “Player of the Century” at the Tokyo Game Show in 1999. Despite the fact this fundamentally made no sense, the claim was echoed by Billy’s friend and business partner Walter Day, and over time had become accepted in gaming history as true. Years later, a thorough examination of the surviving documentation showed no contemporary evidence that any such title was tied to Billy’s brief appearance at TGS. In fact, it was Day himself who had given Billy that “Player of the Century” title a month earlier. Most notably, the little plaque Billy received at TGS made no reference whatsoever to this “Player of the Century” title. Instead, it simply congratulated him on his claimed perfect score of Pac-Man earlier that year, and promoted Namco’s new Playstation game. While this particular deceit is not the topic being litigated in Billy’s lawsuit, it does relate to the fraud alleged in Twin Galaxies’ countersuit, and it does help establish Billy’s history of falsifying accolades – just in case someone wanted to entertain the notion that his bogus Donkey Kong scores were some kind of behavioral outlier.

During his January deposition, Billy was shown the above uncredited photo, and he identified the plaque seen in that photo as his “Player of the Century” award allegedly from Namco. But since we know the text on his original plaque, and because Billy can’t simply admit that he had lied about something, Billy began spinning the story that there were actually two nearly identical plaques, one of which congratulated him on his Pac-Man score, and the other of which additionally named him “Player of the Century”. So the story goes, the one that doesn’t help his case is the one he brought to conventions and showed off in movies over the years, while the other one that would prove his story has been kept secret, and was never shown to anyone, and he has no pictures of it, and neither does anybody else.

Normally, per civil suit procedure, Billy would be required to produce these two alleged plaques for inspection by TG’s attorney. Billy tried to get around this by claiming he had given all his old awards to the International Video Game Hall of Fame years ago. (He also said that he was never a director for that Hall of Fame – something contradicted by the witness testimony of at least two others.) However, during his own deposition, Walter Day let slip that he had recently seen a new photo of said plaque. We’ll get to this exact exchange later, but since the existence of a photo was now disclosed, David Tashroudian (TG’s lawyer) was able to request it, and Manning & Kass (Billy’s law firm) were obligated to provide it.

But again, several people had taken photos of the original plaque from 1999, and while not each of those photos are legible, most of them still confirm that the main paragraph in the plaque’s faux letter had nine lines of text. Of these two newly emerged plaques, one has a paragraph with nine lines, while that same paragraph on the other variant has eleven – likely where the words “Player of the Century” were inserted into the late Masaya Nakamura’s statement. Yes, it turns out, Billy (or one of his colleagues) went to all the trouble of producing fake plaques to justify his new story of there having been two awards all along. Of course, as demonstrated by a forensic analysis paid for by TG, neither of these (including the nine-line version) match the original plaque Billy was given in 1999, which was the object being discussed and requested.

Since we’re all convened here anyway, let’s take a moment to review a few new items that were sent to me recently. You may have noticed that Billy gave the game away when he so promptly identified the plaque in the uncredited Tokyo stage photo as his “Player of the Century” variant. (That was at 17:00 in his deposition, if you’d like to see the interaction for yourself.) These two plaques are supposedly identical aside from the text, and the camera’s too far away to read which is which. How exactly did he know so quickly that the plaque he held in the photo wasn’t the boring version talking about Namco’s new Playstation game?

You could argue that, maybe in Billy’s universe, he was only ever holding the “Century” plaque on stage, and the “Playstation” one was for some reason given to him elsewhere. So therefore, hypothetically, that plaque had to have been the secret “Player of the Century” variant. But alas, we can actually show that the main paragraph on the plaque Billy held on stage had only nine lines of text – which was consistent with the “Playstation” plaque Billy had shown off at conventions for years.

Back in “Dot Seven”, I included an alternative photo from the Tokyo Game Show, taken by Katsumi Kasahara of Associated Press:

The highest resolution I had for that photo at the time was 1024 x 705. However, I was recently directed to an even higher resolution version – 2000 x 1376 – posted to Twitter by the Chicago Tribune on the day TG removed Billy’s scores:

https://twitter.com/chicagotribune/status/984455703942266880/photo/1

I invite you to drop that image into your favorite photo editor of choice. If you play with the settings for a while, you’ll see there are only nine lines of text in the main paragraph, matching the old known plaque:

(If you’re not sure what I’m referring to, see page 28 of Motti Gabler’s forensic analysis.)

Again, that’s not a photo you got from me. That’s from the Chicago Tribune.

Ah, but this gets worse for Mr. Cheater. Because remember, there weren’t actually two plaques. Billy didn’t just misremember or misidentify which variant he was holding at which moment during which photograph. Prior to the recent replication of his imitation commendations, there was only ever one Pac-Man plaque.

Let’s go back again to the uncredited photo from before:

Look at how Nakamura and Mitchell hold the plaque identically in both the uncredited photo and the Kasahara photo. Even if we attempted to entertain Billy’s ridiculous fable of Namco showering him with nearly identical trophies, are we supposed to believe that, in the middle of this presentation, they swapped out the “Player of the Century” version for the “Playstation” version, and yet both Nakamura and Mitchell held both of those the exact same way, both times? And that both of those plaques were slightly tucked into Billy’s suit jacket the exact same way each time?

As any reasonable person not wearing tinfoil bunny ears would conclude, that was one award being photographed both times – probably without much down time in between. And while we can’t read the text in the Kasahara photo, we can see that main paragraph had nine lines of text. But don’t worry – I’m sure Billy already has a lackey hard at work producing another new plaque, which this time has nine lines and has the words “Player of the Century” on it.

But that’s still not the end of the new discoveries. An attendee at this summer’s NERG festival in England posted photos of some memorabilia, and amongst them was this interesting item:

Why, that is certainly another photo of Billy Mitchell on stage at the 1999 Tokyo Game Show. And it’s signed by Billy himself, no less! Except… that’s not the same as the other two photos we’ve seen. Sure, you see the same grip on that plaque, and the same tuck into the suit jacket, But Billy’s hand isn’t raised, either to do the little Pac-Man gesture, or as practice for his future career as a perjurist. Also, the expressions on some of the cheerleaders (especially the fourth from the right) are different.

OH. MY. GOSH. Has Billy been holding out on us all this time?

Billy may not have a material obligation to provide us in the public all these old photos he has of the event he’s been lying about all these years, but surely TG asked for these photos in one of their discovery requests. Also, it wouldn’t be just Billy holding out on this one. It turns out that same variant photo was used by Walter Day on a trading card in 2022:

Additionally, it seems like this and at least one other unreleased photo were of high enough resolution that Billy had them printed on a big promotional banner:

Once again, I guess we aren’t allowed to see the evidence for ourselves.

PLAQUE TO THE FUTURE

Anyway, the new plaques are totally fake. We already knew that. We’ve also previously discussed how Billy and his lawyers sent Mr. Tash on a wild goose chase for these plaques, first claiming that someone named Jerry Byrum had them, then attributing the photo to a John Grunwald, before admitting it was taken by Billy’s friend Isaiah “Triforce” Johnson. All of this resulted in Tash being forced to review over 200 hours of CCTV footage to track down which of these stories was true. The problem here is, if you don’t sufficiently contest what the other party is claiming, it can get accepted as fact. Billy spins so many lies so casually, forcing the other side to do the legwork of refuting each of them, only for Billy to add a new spin to the lie each time he’s about to face accountability. But to Tash’s credit, he did the work. These plaques were provable forgeries, and the story about how they were “found” was definitely fabricated.

Tash moved for “terminating sanctions” as a remedy for Team Billy’s abuse of the discovery process. Alternatively, Tash moved the court to compel Billy to provide the plaques themselves, arguing that their story of how Triforce mailed them from the Fort Lauderdale airport back to the guy who supposedly had them before was concocted as a way of secreting them away from required disclosure.

On Thursday, September 14th, the court received Manning & Kass’ rebuttal to Tash’s motion to compel:

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-14-Billy-Opposition-to-motion-to-compel.pdf

So what was Team Billy’s response?

What is even going on!?

They just handwaved it as a “conspiracy theory” and refused to address it? Tash did all this work, put in all these hours, tracking down and refuting their lies, and all they have to say about it is “Nuh-uh”? Instead, they want the judge to go through and tell them what parts they should have to address? They can’t be assed to do their own homework, so they want Judge Chang to do it for them!? All Kristina Ross did offer to this end was a brief narrative of what her firm was told and when, asserting that any inaccuracies in that information were not their fault.

This brief was so bad, I began to wonder if Team Billy had spiritually given up. I thought, maybe they knew they were screwed, and that someone was going to get in trouble for this fiasco. Thus, perhaps Billy’s attorneys wanted to say-without-saying that Billy and his accomplices were the ones at fault, and so any monetary sanctions would be levied against him exclusively. Alternatively, I wondered if the lawyers wanted to put up a façade of opposition such that when they lose, they could turn to Billy and say “Gosh, golly, we really tried to oppose this, look at all this stuff we filed!”

So shouldn’t this mean that Tash’s account is accepted on the face of it? Hasn’t Tash now demonstrated that Billy and his cohorts abused the discovery process? The trial itself may be for a jury to weigh the evidence in the actual case, but it’s not their place to adjudicate things like pre-trial discovery abuse. Will Tash have to go up and testify himself as to the hours he spent scouring CCTV footage? Does the court expect TG to open another lawsuit simply to address the procedural misconduct being perpetrated in this one?

Instead of addressing the facts, Manning & Kass attorney Kristina Ross lamented that poor old Jerry Byrum just won’t cooperate, because of “harassment” from mean Mr. Tash. Kristina even submitted a declaration, which included recent text exchanges between Tash and Byrum as exhibits:

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-14-Billy-Declaration-of-Kristina-Ross.pdf

Ah, so it’s really Tash’s fault that Byrum won’t cooperate and supply either the fake plaques or a better photo of them… all while he does cooperate in forwarding just these screenshots of text exchanges that Billy’s lawyers want.

How does anyone older than ten fall for this?

Notice also the assurance that, if they do acquire the plaques, they’ll be only too happy to invite Tash over to inspect them. Yes, I’m sure Manning & Kass will be super-eager to track down these plaques that help prove their client is a serial fraudster, when they know that nothing will be done about it if they don’t.

Ross also insulted the court by once again repeating the intentional bad faith argument of (paraphrasing) “Well, if they want photos of these plaques, just use any old photo of it you can find on the Internet”:

But that wasn’t the entirety of Ross’ opposition arguments here.

Basically, Ross argued that Tash’s motion violated some technical bit of court procedure involving California Rules of Court, specifically rule 3.1345(a)(3). What, you may ask, is California Rules of Court rule 3.1345(a)(3)? I’m glad you asked!

This is exactly the type of thing people are referring to when you hear about technicalities and angle-shooting. This is like rules-lawyering in Magic the Gathering or Yu-Gi-Oh, except with actual lawyers, no love of the game, and lots of money on the line.

We’ll get more into the topic of what powers a judge has in a moment, but for now I’ll say this: When you’re an outsider to the legal process, you may feel a bit intimidated by these walls of directives that look so ironclad, but in practice, the rules of court are much softer than they appear on paper. You see this, not only in Team Billy’s ability to flaunt those rules without apparent consequences, but also with item (b)(2) above. It basically says “The court (i.e., the judge) can just say ‘Whatevs, I’m allowing it anyway'”. Also, I’m sure Tash has filed many of these before, and has never been obstructed by this technicality. If Judge Chang wanted Billy’s case tossed out – and she should, because it absolutely does deserved to be terminated – this rule alone would not stop her. However, this technicality would provide her grounds to deny the motion without really having to weigh its merits, if she didn’t want to be seen as coming down on either side.

The Mighty Mister Tash was all over this. He filed a reply brief highlighting Team Billy’s failure to provide any counter-position whatsoever to TG’s narrative, while also pointing out that Manning & Kass can’t deny the facts without making statements to the court that are false. Tash also cited case law that it is well within the court’s authority to weigh evidence to determine if one party has committed an abuse of the discovery process. (In other words, the court doesn’t need a jury to decide that.) As to the procedural points, Tash addressed those as well:

However, Wendy Chang denied Tash’s motion on the basis of this technicality, and apparently, with regard to the motion for terminating sanctions in particular, on the notion that discovery abuse is something that should be determined by a jury:

In her ruling, Judge Chang refers TG’s grievances toward “a properly filed motion in limine, or to be addressed in another form”. For those who don’t speak Latin, a “motion in limine” is a way to ask the court to exclude certain topics from a jury trial. Basically, it’s like saying “Please, your honor, instruct the opposing party that in the presence of the jury they are not allowed to ask about all the times my client has lied about his business history, or how my client frequently lies about how long he’s been married, or about my client’s many, many traffic tickets and all the weak excuses he gives to get out of them”. The idea behind motions in limine is, if it’s something like a murder trial, a jury could be prejudiced by hearing that the defendant has a prior murder conviction (or even any conviction for anything), when they should be focusing on the evidence particular to the current case.

So Judge Wendy Chang suggests the solution to Billy’s plaque nonsense is a “properly filed motion in limine” in the window immediately before trial. Now, I’m not up on every bit of legalese, so I could be missing something here, but by the name of Zeus in Asgard himself I hope she doesn’t mean “Well, if you think the plaques are fake, you should just ask the court to tell the other side they can’t talk about them at the trial”.

All the monetary sanctions asked for on both sides were denied, but Judge Chang did order Tash to pay for two filing fees that should have been paid, if this motion had been submitted as three documents. But this one kind of baffles me, to be honest. Note how the only substantive rebuke is directed toward the request for terminating sanctions (i.e., that Billy’s case should be tossed out of court altogether), where she says it involves “disputed facts that likely need to be addressed by a jury”. She gives no reason why the other elements of Tash’s filing should not be granted. If she wants to deny the motion as filed, fine. If she wants to tell Tash to refile properly, okay. Or if she wants to say “This is all good, but this should have been filed in three installments, so I’m issuing a sanction to correct that oversight”, go for it. But to order Tash to pay three filing fees, and then to also deny the motion on the basis that Tash hasn’t paid three filing fees?

When I first read Manning & Kass’ reply brief, my first impression was that they were trying to blow a bunch of smoke, in the hope that the judge would only see a big cloud of smoke around two parties fighting, and would not look deeper into the fact that only one of those parties’ cases has merit. My concern was that, as desperate and dishonest a tactic as that may be, sometimes it works. At least for the moment, it does indeed seem to have bought Team Billy more time for whatever it is they think could possibly fall out of the sky to save their case.

And after all this, we still don’t have any story on what happened to these bogus plaques after Triforce allegedly mailed them from the Florida airport back to Iowa. Byrum apparently won’t say whether he has the plaques or not. (At this point, you can guarantee we’ll never see those fakes again.) We don’t even have a shred of evidence or even witness testimony corroborating Billy’s claim that he donated his original plaque to the IVGHOF in the first place. It was all one giant crooked shell game, which Judge Chang has thus far refused to reprimand.

THE SLAPPING CONTINUES

Some of the 9/28 ruling is good for TG, and I promise, we’ll get to that later. But we have to eat a few more gross vegetables before we can have our dessert.

As you saw above, Judge Chang denied TG’s motion to compel production of the phony plaques, as well their request to compel Billy to sit down for a second deposition to answer for his subsequent involvement in their misrepresented “search”. Folks who have watched Billy’s first deposition will understandably be disappointed that we won’t be getting a sequel, at least not at this time. But on the bright side, if he ever sues me, I’ll be able to make him sit down for another one of those… and if that happens, I’ll be the one doing the questioning!!!

TG also moved to compel Billy to provide his written settlement with the late YouTuber Apollo Legend, and the videos he acquired in that settlement. Kristina argued in opposition to that motion as well:

As discussed before, it appears this motion from TG would never have borne fruit, even if it had been granted. While Apollo gave ownership of six (by my count) videos from his YouTube channel to Billy, TG’s arguments centered around two short clips in which Apollo asked Billy about the fake board swap video, and in which Billy directed Apollo to ask technician Carlos Pineiro about “the proof”. Those clips could not have been part of Apollo’s settlement, since they were filmed by Apollo’s friend, and Apollo cannot give away ownership of things he does not own. Possibly, Apollo’s settlement included some bit of language TG might hypothetically leverage to allege that Billy was suing multiple people for the same “damages” (loss of reputation), and Tash did cite case law saying that disclosure of confidential settlement agreements is called for when relevant. Kristina offered that, instead of providing the settlement to TG directly, it could be made available for “in camera review”. (As used here, “in camera” is Latin legalese. Basically, it means a judge or someone neutral would review the document privately and would then say whether it contained anything relevant.) Also, it’s not clear how binding a confidentiality agreement can be when one of the parties is deceased. At any rate, Judge Chang denied this motion as well.

But here, in my eyes, is the real doozy about this ruling. Remember that bit about Walter Day’s changing testimony? It has to do with a phone call Walter received from Jace Hall in March 2018, in the midst of the TG dispute over Billy’s scores. First, Walter signed a statement, written for him by Billy Mitchell’s son, attributing the following quote to Jace:

“How will you feel when I announce that Billy [Mitchell] cheated?”

During the anti-SLAPP phase of the case, this exact quote was highlighted as evidence that Jace somehow had a pre-ordained conclusion in mind. In other words, Team Billy were relying on the narrative that Jace decided out of nowhere to defame poor old Billy, and that the dispute process was all a farce toward that end. All of this was part of their attempt to push this case toward trial – or, as they probably hoped, to force a favorable financial settlement.

However, when Walter Day was deposed, he gave a significantly different version of that quote:

“He asked me how it would affect me if Billy was determined to have cheated.”

And this makes so much more sense, does it not? Why on Earth would Jace Hall call Billy’s longtime friend and business partner, twirl his non-existent moustache, and say “Mwahaha, just so you know, I have already decided to remove all your friend’s scores before even testing the evidence, what do you gotta say about that?” But what does make sense would be Jace calling Walter Day – previous owner of TG, and one of the supposed “witnesses” Billy keeps claiming Jace never tried to contact – and saying “Hey, we’re starting to investigate this stuff, but if these scores end up having to come down, how is that gonna affect you, and how is that going to alter our working relationship?” This was an important question for Jace to ask because, among other things, Walter was still the literal logo of TG at the time:

So what did Billy’s lawyer have to say about this misrepresentation of testimony?

Ah, so in Ross’ opinion, the testimony “differed slightly”. And the discrepancies are “relatively minor”.

Honestly, Judge Chang should be outraged, both by Team Billy’s attempt to push this bit of fraudulent testimony past the court during anti-SLAPP, and by their attempts to insult everyone’s intelligence by whitewashing this maneuver now. To see the relevance of this sleight of hand, one need only return to Manning & Kass’ opposition to TG’s anti-SLAPP motion, filed on behalf of Billy by ol’ Greasy James Gibbons way back in June 2020:

As we’ve discussed before, anti-SLAPP laws exist to weed out frivolous lawsuits, whose only purpose is to harass, silence, and punish protected free speech. And so, the burden is on the plaintiff to at least demonstrate the attempt to argue a case which includes all the required elements. As you see above, Billy’s case at the time revolved around a hypothetical timeline wherein Jace’s investigation came after his stated decision, which they argued was rock solid proof of a “Pre-Ordained Conclusion”. However, all of that changes when you substitute Walter’s actual words for the highlighted quote. Suddenly, Jace instead looks like a diligent investigator, following every lead, and being mindful of the consequences of his actions. Following this genuine inquiry, he then began his technical research, and subsequently ruled in favor of Jeremy Young’s dispute claim in April, all in accordance with the timeline one would expect from a responsible adjudicator.

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-20-TG-Reply-in-support-of-motion-to-compel.pdf

In his reply brief, Tash highlighted several elements of Billy’s testimony which have contradicted those of other witnesses, including those who Billy’s attorneys have themselves called upon to support their case. While this would not be the time or place for Billy to be found guilty of perjury, or to find his son guilty of suborning perjury by writing false testimony for others to sign, all of this should still inform the judge as to the merits of this case before her.

As I’ve said before, “I’m not going to tell you that Billy’s lawsuit was allowed to proceed strictly on the basis of this fabricated remark”. And I’m going to stick to that here. I certainly don’t think Greasy Gibbons would have given up on the case entirely had his “law clerk” Billy Junior not slipped in this fraudulent affidavit. Perhaps some other bit of rhetoric would have been used in its place. However, including such blatantly misrepresented testimony should surely be cause for termination of their case now. You can’t just sprinkle in a bunch of outright lies to make your anti-SLAPP opposition look better, can you? If plaintiffs can simply lie their way past anti-SLAPP without any consequences, then what’s even the point of having anti-SLAPP laws in the first place?

WHAT’S A JUDGE TO DO?

Sometimes, in my writing, when I want to really emphasize a delicate point, I preface it by saying “I want to be crystal clear on this”. (You could say it’s my “The fact of the matter is”.) But I’ve never meant that more than I do right now: I want to be completely, all-encompassingly, spotlessly clear that, in today’s update, which I write alone in my role as an independent investigator reporting on this case, I speak for myself and only myself and absolutely no one else. I’m not a fool, and I have no wish to antagonize the judge, especially when it’s not my neck on the line. I’m also not here strictly for the purpose of telling a professional how to do her job. Literally nobody asked me to write any of this today. I’m simply a journalist who has covered this story for over five years, who wishes to keep the gaming community informed on this case dealing with issues of interest to that community, and who by virtue of my coverage to date is in the position of being expected to write publicly about this misguided decision which, in my personal opinion, sucks poop through a paper straw.

As I alluded to earlier, judges have much more leeway than is written on paper. Recall Billy’s run-in with Judge Keathan Frink in 2021:

Judge Frink tossed out Billy’s duplicative lawsuit in TG in Florida on the basis that Billy had not properly served it within the required window. But this is interesting, given that a different judge did grant Billy an extension under similar circumstances in his lawsuit against Jeremy Young, Jeff Harrist, and Donkey Kong Forum, which was also never served. When you think about it, the whole appeals process is built on the foundation not only that some judges may get things wrong, but also that different judges will interpret law differently, and that some matters require a single directive for all lower jurisdictions to abide by.

You also see judicial liberties included in some rulings, such as these classics from District Court Judge Anne Thompson in 2015:

But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being.

Rather than merely being recognizable by his hair and beard, GBF appears as only hair and a beard. Rather than holding the world record at a well-known game, GBF holds the record for the entire universe. Rather than questioning his opponents’ honesty, GBF simply begs his opponents to let him keep his high score. And when GBF loses his title, the character literally explodes, unlike Plaintiff.

Obviously this is from Billy’s failed lawsuit against Cartoon Network. This was as much a ruling on the judicial merits of the case as it was a statement of “Get this baseless horseshit out of my court”.

You also see these liberties in judicial work-arounds. Not long ago, in a local case, I personally witnessed a judge say outright “I have read [Document X], by rule I cannot take [Document X] into consideration, but I am ruling in favor of [position argued in Document X] on the basis of [stuff that was submitted way before Document X].” This happens all the time. If a plaintiff lies twenty times in ways which are more properly addressed by trial, but then also lies once directly to the court itself, there is no ethical obligation for the judge to pretend this one lie was a weird accident that exists in isolation.

To be perfectly honest, I wasn’t expecting a termination of the case based on Billy’s failure to provide the fake plaques alone. While the intent to mislead was palpably obvious, the option to compel Billy to produce the plaques seemed an appropriate remedy to that issue in isolation. However, pairing that farce with the fraudulent testimony the court relied on in its anti-SLAPP ruling paints a much more stunning picture. And that misrepresentation directly to the court during anti-SLAPP has to be something a judge can act upon. Given all of this, and given the malfeasance Mr. Tash has worked so hard to uncover and prove, I simply do not buy the argument that Judge Chang was powerless to toss this case out of court without a more properly formatted motion from the defense. This would mean that either the conduct of Billy and of Manning & Kass does not offend Judge Chang – which if true is a Serious Issue, not only for this case but also for any other cases that come before her bench – or less cynically, Judge Chang believes herself to be at least relatively unempowered to intervene at this time.

I haven’t particularly written about Judge Wendy Chang in my coverage of this case until now, primarily because there was nothing for me to write about. In 2018, while working at firm Hinshaw & Culbertson, she was appointed to Los Angeles Superior Court to fill a retirement vacancy. In 2020, Chang retained the position when she ran unopposed, and when the uncontested election was cancelled as a pandemic precaution anyway. (It does mean that, technically, nobody voted for her, although that is a common occurrence when the courts fill vacancies.)

In January 2022, for reasons that were never made clear, the Billy Mitchell lawsuit was reassigned to Chang from the original Judge Gregory Alacorn (who still sits on the Los Angeles Superior Court bench). Judge Alacorn’s only real contributions were the two rulings in October 2020, denying TG’s anti-SLAPP motion, and requiring Billy to put up an $80,000 “undertaking” deposit to continue as an out-of-state litigant. The undertaking ruling was a big win for TG, in that it required Billy to actually invest resources into his frivolous lawsuit full of lies. And while the anti-SLAPP ruling was disappointing, it was understandable, given that Billy had lied through his teeth to present the false veneer of having a legitimate case, and that many of these lies would have to be hashed out at trial.

This 9/28 ruling marks Judge Chang’s first significant contribution to our never-ending Donkey Kong escapade. I believe it’s fair to say she’s not too new to the bench (and especially not the courtroom itself) to see what’s going on. Among the opinions on this ruling I’ve heard, one is that she doesn’t want to do anything that could tie the case up in appeals, both for the fact that having rulings overturned may look bad for her, but also because it would drag this case out for more years. But this circles right back to the notion that, if there are no consequences for violating the rules around discovery, then there effectively are no rules around discovery.

Even if this argued technicality was some sort of iron wall that forbids the judge from acting on any aspect of the evidence in front of her, there is a distinct lack of immediacy in the written ruling brief. Granted, I was not able to witness the hearing itself, but reading the text on paper, I see no sense of urgency, no “Get this refiled properly on the double, cross all your ‘I’s and dot all your ‘T’s, and we’ll get this resolved right away”. Rather, Judge Chang offers the puzzling suggestion that all of this, including a request to compel discovery, can be addressed “during the immediate pretrial phase of this case” – as if it’s more appropriate to wait until after many more expenditures of time and resources into further depositions and filings. I also find it hard to believe that Judge Chang would be more inclined at the moment immediately preceding the trial to call the whole endeavor off, rather than simply allow the process to play out so close to the finish line.

I have no doubt the crew at Manning & Kass were high-fiving each other after the 9/28 ruling. Team Billy pulled serious shenanigans, with falsified testimony, fake evidence, coordinated switcheroos to hide the fake evidence, and bad faith argumentation to the court, and (at least so far) they’ve walked away clean from all of it. This makes me wonder what would have compelled Judge Chang to toss this case out. Did Billy himself need to be caught physically handing the fake plaques to Jerry Byrum and telling him “Make sure no one ever sees these”? Does he need to be videotaped handing witnesses cash and telling them “I know this statement is full of lies, but you can have this money if you just sign it anyway”? Going forward, we shouldn’t be surprised if Team Billy’s skulduggery continues; of course the lawyers will play games if they know they’ll get away with it. This even leaves me wondering if maybe Mr. Tash shouldn’t be pushing the rules more himself, since there will apparently be no serious consequences for doing so. Ultimately, this was a weird by-the-rules judgment which also made a mockery of the rules at the same time.

I’m sure Mr. Tash is a professional and knows how to bounce back, as you cannot let crap like this deflate your momentum. None of this should be an excuse for not fighting your hardest. To use a sports analogy, just because your team suffers an obviously bad call, you’re only going to make it worse by focusing on that instead of what you have to do going forward. In life, you always have to address the current reality of the situation. And to be clear, Billy still has literally no chance of convincing a jury to side with him in his defamation claim against Twin Galaxies. Rulings like these are just moments of insanity that those of us interested in the case are forced to watch unfold along the way.

SO WHAT’S THE GOOD NEWS?

With all of that out of the way, let’s get to the good stuff, starting with the one part of Judge Chang’s ruling that went TG’s way. Last time out, we discussed Billy’s motion to hold Tash in contempt of court for sharing Billy’s deposition video with Karl Jobst. Of course, you may have noticed one odd detail to their motion – and when I say “you may have noticed”, it possibly helped that I specifically brought attention to it – which is that they never cited what portion of Billy’s deposition they claimed was confidential. They just acted like the judge was supposed to know, or figure it out for herself. Did Kristina just not feel like looking up the page number or timestamp? Were they playing some kind of “you first” game with Tash? Who knows?

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-14-TG-Opposition-to-motion-for-contempt.pdf

At any rate, Tash did choose to proactively address the only argument Team Billy could even try to latch on to. Recall that, at around 4:04:40 in Billy’s deposition video, Tash began playing an audio recording of a public interview Billy did in 2018. Ellrod, believing this podcast interview was actually one of David Race’s recorded phone calls, objected and asked that the segment be marked confidential until the nature of the recording was identified. The situation was later clarified, and Ellrod formally withdrew the confidential designation at around 4:29:30.

Basically, the argument would be over whether this withdrawal of confidentiality by Ellrod meant “Oh right, we have determined that that was a public interview, and thus there was no need for it to be confidential” or “We still want to investigate whether this podcast was really a private recording, but since we are no longer discussing that recording, nothing needs to be confidential from this point forward”. To address this point, Tash cited all the topics discussed during that 25-minute window, all of which have already been discussed publicly and none of which require a confidential designation.

Tash also offered legal arguments as to why the cited restrictions on deposition materials apply to the deposition officer, and not the party conducting the deposition, while pointing out that Billy can’t file a claim on behalf of the court reporter. As to Kristina’s crocodile tears about Billy’s witnesses being afraid to testify, Tash points out that no such witnesses have been identified, and that if such a witness existed they could still seek a protective order of their own.

Tash also asked the judge to consider why Billy was aiming to suppress distribution of his deposition testimony. In doing so, Tash cited the 2018 video we discussed last time, where Billy told the public:

Everything will be transparent. Everything will be available. I wish I had it in my hands right now. I wish I could hand it to you. But it’s taken a considerable amount of time. Witnesses, documents, everything will be made available to you. Nothing will be withheld. You absolutely have my commitment to that.

Granted, while Tash certainly wanted to make sure Judge Chang was aware of Billy’s dishonesty, there is no strict legal basis to punish a plaintiff for lying to the public about wanting transparency while stifling dissemination of the evidence behind the public’s back. In his reply brief, Ellrod was quick to point this out, while calling back again to the previously cited protected order:

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-20-Billy-Reply-regarding-motion-for-contempt.pdf

Yes, I’m sure the jury pool for this stupid Donkey Kong lawsuit will be irrevocably tainted by these few write-ups and videos read and watched by a subset of the video gaming community who can be easily filtered out of the process during “voir dire”.

Regardless, Ellrod gives us a peek into the real purpose behind Team Billy’s complaints over an already-released deposition which they cannot trap back in the bottle anyway:

Yes, they want all the depositions marked confidential. You know, so us journalists can’t “try this case in the court of public opinion”. I know I’ve said this before, but maybe, just possibly, it was a mistake for Manning & Kass to take on a case which they knew already had heavy hobbyist attention and existing media presence. (Oh, and all the known evidence against their client. That, too.)

At any rate, Judge Chang cited the parties’ “conflicting arguments”, but noted that Billy’s side had failed to meet any evidentiary threshold, and that TG had sufficiently demonstrated that nothing in the deposition transcript or video bears an official confidential marker:

So it looks like no Karl Jobst videos will be disappearing on account of deposition transcripts. Of course, this hasn’t stopped Billy from continuing to file bogus copyright strikes against his deposition on YouTube. It seems that, at some unidentified point along the way, Billy Mitchell got the impression that the rules didn’t apply to him. (Hmmm, I wonder how that happened.)

WALTER’S TERRIBLE, HORRIBLE, NO GOOD, VERY BAD DAY

Okay, let’s get to what we really want: New evidence!!

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-20-TG-Declaration-of-David-Tashroudian.pdf

Attached to a Sept. 20th declaration, Tash included significant portions of the transcript of the June 26, 2023 deposition of Walter Day. While references to Day’s testimony have been made in other filings, this is our first chance to see some (but not all) of what Walter Day had to say, in his own words.

(FWIW, the document itself lists the deposition date as June 26, 2021, but that seems to be an error. In summer 2021, action on the case was suspended as TG awaited a ruling in their anti-SLAPP appeal. Also, Tash cites the date as June 26, 2023, as does one confirmation page included at the end.)

Of course, Walter was asked about his written declaration, which he confirmed was written by Billy Junior. He was asked about conflicts between his testimony and Josh Ryan’s, and even conflicts with his own recollection:

Walter said he first learned of the dispute against Billy’s scores in February 2018, and that he did not recall speaking with Jace about it prior to a phone call that March. Walter also admitted that he had not done a “reasonably diligent search” for old emails relevant to this lawsuit. However, if he had done such a search, he would have found a particularly relevant email from Jace, in August 2017:

So now, Walter is aware of that email. But he says he “definitely” did not respond, and probably didn’t even look at it.

Whoops again. This stunning interaction gives a look inside the echo chamber going on in the Billy camp. Whatever evidence they can grasp at to support their cause, that’s all they focus on. It helps their narrative if Jace never asked Walter Day for his input, so that’s the story they go with, and the times that Jace did reach out to Walter get forgotten about, because they’re inconvenient.

Walter is pressed about the statements that he only learned about the dispute on February 2nd, and that Jace did not seek his input. Walter then becomes evasive on exactly who wrote those passages, flippantly telling Tash “Maybe you wrote it”.

And there is where we get the big moment, where Walter admitted that what Jace actually asked is how it would affect him IF it is determined that Billy cheated. Walter tried to evade that as well, saying his written statement captured the essence of what was said, before being reminded that that’s not how direct quotes work.

Walter was asked what happened to the money he was paid in the sale of Twin Galaxies to Jace Hall. Some of it went to John Bloch, the original co-founder of TG back in the ’80s. Some went to Todd Rogers, and some went to Joel West for gaming promotions. Eventually, after being asked to don his thinking cap, Walter recalled giving Billy Mitchell $33,000 of that money by bank transfer in 2018.

Walter characterized it as a “gift, thanking him for all the goodwill he’d [given] to the community” and for his general positivity. (A misplaced sentiment if ever I’ve heard one.) But when asked if he was told to keep the payment a secret, Walter admitted that was indeed the case, claiming that Billy said he didn’t want to be judged. I’m not sure who would’ve judged Billy for accepting money from the sale of TG, given his historic ownership stake in the organization – that is, of course, unless Billy went around claiming to everyone that he received none of that money, and was never a part of TG ownership or administration. (By comparison, if Jace ever sold TG and gave a significant slice of that revenue to Rick Fox, I would think nothing of it, unless we were also being fed a story of how Fox had no part in it.)

Interestingly, it seems this payment was made from TG the organization directly to Billy. It’s not clear if this means TG pre-sale or post-sale, but either way, this would be in the books Jace Hall would subsequently have access to. While the public may be piecing together this testimony now, it seems current TG and their attorney have known about these various falsehoods in the Billy/Walter story, and are only now getting the opportunity to expose these lies on the record.

When asked about the legal battle, Walter begins by pulling a “Neither side”, suggesting the litigation from both parties is “needless”. But when asked for clarification, Walter clarifies his opinion that only Jace’s actions are “needless”, and that Billy “is doing what he feels he has to do”. (That, my friends, is a classic enablement line.)

With regard to Billy’s and Walter’s trip to Japan in 1999, Walter recalled Billy paying for Walter’s fare on the same flight. This would contradict Billy’s old account, discussed in “Dot Six”, that Walter took a separate flight two days later. However, Walter does recall returning from Japan a couple days earlier than Billy did.

But the most interesting admission from Walter about the 1999 story is that Walter was not present for Billy’s moment on stage. Walter began spinning this detailed account of what allegedly happened, qualified with those classic words “my understanding” (as in “This is my understanding of what happened”).

As is the whole point of these depositions, Tash inquired many times about where this “understanding” of Walter’s originated from. Of course, it was all just stuff Billy told him, which Walter believed unquestioningly.

Several times, Tash asks about recent communications Walter had with Billy, just prior to this deposition. But when asking about the contents of these communications, Walter’s lawyer Robert Cohen objects on the grounds that Walter and Billy have a “joint defense agreement”. Basically, since they’re both defendants in the countersuit, and are preparing their defenses together, the normal attorney-client privilege extends between them as well. Interestingly though, Tash asks for a copy of that agreement, and is told that the agreement itself is confidential as well. So… I guess folks just have to trust that it exists, and that it says what Mr. Cohen says it does? I wonder, if this agreement ever somehow becomes inconvenient for Billy and Walter, will we find out that it never really existed? Or was never properly signed?

While Walter’s lawyers consistently objected to questions about Walter’s communications with Billy, Tash was able to get answers about the new photo of the two plaques Walter incautiously divulged. Later, Walter was asked about what one of the plaques in that photo said:

The words “video game player of the century” “lept out of the page”?

There are a few problems with this, including that it was Walter who added the words “video game” to the quoted title “player of the century” in a press release months after their Japan trip. Sure, Billy subsequently took that whole phrase, dropped the quote marks, and ran with it, but that was a demonstrably later creation.

More importantly though, as you may recall, that photo of the two plaques – at least the one shared with Mr. Tash – was of significantly low resolution. Either Walter Day the septuagenarian has the world’s best eyesight, or he’s just making up all this testimony (a distinct possibility), or he was given a much clearer version of the photo than was shared with Tash.

At one point, Walter also gets asked about being filmed for a new movie by King of Kong producer Ed Cunningham. Walter suggests this movie is about his music career and is totes not about the lawsuit, but admits he can’t say for sure what Ed has in mind for the final product. And finally, Walter testifies that Billy was totally on the board of directors for the International Video Game Hall of Fame. Guess the rest of Team Billy never informed him what their new story on that was.

BILLY’S NEW EXPERT

We’ll end today with a couple other new discoveries. First, buried amongst the recent filings was a freshly signed declaration from David Bishop, former executive vice president at Namco USA, and longtime friend of Billy Mitchell’s:

https://perfectpacman.com/wp-content/uploads/2023/09/Legal-Billy-vs-TG-2023-09-14-Billy-Declaration-of-David-Bishop.pdf

As discussed way back in “Dot Six”, David seems to have been Billy’s personal connection with Namco all these years. You can also see them both together on the 2015 promotional panel for the movie Pixels:

(It’s a shame that David shaved that sweet Borat ‘stache from the ’90s. Oh, and yes, that is Billy’s friend Triforce sitting in the front row.)

Ordinarily, this would be a very random time to start adding unrelated witness testimony. The inclusion of Bishop’s declaration would seem to be Team Billy’s counter to all the phony plaque clownery. “Well, even if I may have made fake trophies hoping to pass them off as genuine awards from Namco, and even if in doing so I may have falsely attributed words to the deceased Masaya Nakamura, this other guy who used to work for Namco is still friends with me, and really your honor, isn’t everything truly about the friends we make along the way?”

So what, you may ask, is this powerful new testimony Mr. Bishop provides to blow this case wide open?

“MY UNDERSTANDING” BWAAAAAAHAHAHAHAHAHHAAAAAAAAAAAA

He wouldn’t even say “No, Namco definitely gave him the title ‘Player of the Century'”. It’s just like “I sincerely believe that at some point, at some event I apparently did not attend, I’m fairly sure Masaya Nakamura said the words ‘Player of the Century’ in that order.”

“Named”? What does that mean? As we discussed back in “Dot Seven”, all we ever get are these weasel words (“crowned”, “proclaimed”, “declared”, “introduced”), deliberately avoiding the fact that Billy’s “Player of the Century” title originated from his friend and business partner Walter Day, and was announced at CGE a month prior to his appearance at the Tokyo Game Show. No surviving evidence indicates Mr. Nakamura did anything other than read a prepared biography, and even Namco themselves at the time attributed Billy’s title to CGE. And while Billy himself may lie through his teeth about this event that apparently nobody else attended, his witnesses all seem reluctant to do anything but dance around this unavoidable fact.

Also, hmmm…. Another reference to high-definition photographs of Billy on stage at Tokyo Game Show, which we haven’t seen yet (aside from the Kasahara AP photo in which we can see the nine-line paragraph). I don’t suppose it’s because those stage photos we do have keep proving Billy lies about everything? Perhaps TG should ask for these photos. At the very least, this would force Billy and his friends to pay for several more plane flights so Triforce can “accidentally” leave all copies of them at a Waffle House in Tennessee.

That’s basically the extent of Mr. Bishop’s “value” to these proceedings, so let’s move on. There’s another new name amongst the otherwise dwindling ranks of Team Billy. Folks may have asked, how is Billy going to address the mountain of technical evidence proving his score tapes were fabricated?

Well, I think we recently found our answer:

Meet Michael Zyda, or “Mike” to his friends – Professor Emeritus of Computer Science Practice at the University of Southern California.

How do we know that Mr. Zyda’s now working for Team Billy? Simple: He’s bragging about it right on his personal site’s biography!

It’s a bold strategy, Cotton.

As mentioned, Zyda’s a professor at University of Southern California.

More like “palMAME” amirite? If Zyda is actually teaching classes at USC, then surely one of his students has to have seen Karl Jobst’s videos. I wonder if anyone from UCLA across town has any thoughts on Mr. Trojan here choosing to be Billy Mitchell’s workhorse. (Yes, I did the thing.)

And what is Professor Zyda, game designer and patent litigator, going to say that’s going to counter last year’s ironclad technical analysis from dedicated Donkey Kong expert Tanner Fokkens? “Computers are magic”? “Refresh rates are matters of opinion”? “Screen-tearing is the game’s way of saying ‘I love you'”? My gosh, are we going to see a return of “The Human Element”?

It was inevitable that someone with some degree of qualifications would choose to accept Billy’s money (or “mOViE eXpOsUrE”) and either lie outright and say arcade Donkey Kong can produce MAME signatures, or just spout a bunch of technical mumbo jumbo in the hopes of befuddling a jury.

In a 2022 issue of the academic journal Computer, Zyda offered his insights into working as an expert witness in a write-up titled “Patent Litigation in the Games Space”:

The primary thing an expert does is to work with attorneys in drafting declarations that opine on the technical issues at hand in the current case. Once those declarations go to the other side, the other side responds with a declaration responding to what I wrote. I usually get a chance to do a short response to that declaration right before a date is set for my deposition.

I, for one, eagerly await his written declaration… although it seems like, if he was working for Billy since June, he would have found the time to produce one by now. How come we always gotta wait ’til the last moment for Billy’s “exonerating evidence” only to find out, every time, that it’s just more nonsense?

Okay, so Mr. Zyda’s pretty confident that he can write declarations. But what about his trial experience?

I have been interviewed for maybe three times as many cases as I have actually done. I usually lose the gig when I answer the question, “Do you have trial experience?” The answer is no, I don’t have trial experience — because usually you only get to trial if your declarations are not solid or if they are sloppily written. You don’t get to trial if the opposing counsel cannot crush your soul.

So the answer is, no, no trial experience.

I hate to disappoint Mr. Zyda, but barring a late change of heart from the judge, it looks like this case is all but guaranteed to go to trial, possibly as soon as late November. One day, I may get to talk with one of the jurors from this trial. And they’ll probably ask me “How on Earth did this ridiculous Donkey Kong lawsuit with all of this guy’s lies ever get to trial in the first place? Why did I have to waste my time and cancel my Thanksgiving travel plans just to listen to this crap?” And if this case does go to trial, and if I do speak with that juror, I will be blunt, and I’ll tell them the truth as I see it: “You had to sit through all of that because Judge Wendy Chang didn’t put a stop to this nonsense when she should have.”