JUDGE issues TENTATIVE rulings on EXCLUSIONS in the AXANAR LAWSUIT! (Part 1)

Okay, nobody cheer, nobody panic!  These are all TENTATIVE rulings in the AXANAR lawsuit.  Judge Klausner himself even made sure to put the word TENTATIVE in ALL CAPS in his ruling yesterday:

The Court makes the following TENTATIVE rulings on the Motions In Limine:

  • Plaintiff’s Motions In Limine No. 1 – Denied
  • Plaintiff’s Motions In Limine No. 2 – Granted
  • Plaintiff’s Motions In Limine No. 3 – Granted
  • Plaintiff’s Motions In Limine No. 4 – Granted
  • Plaintiff’s Motions In Limine No. 5 – Granted
  • Plaintiff’s Motions In Limine No. 6 – Under Submission
  • Plaintiff’s Motions In Limine No. 7 – Granted
  • Plaintiff’s Motions In Limine No. 8 – Granted
  • Plaintiff’s Motions In Limine No. 9 – Denied
  • Plaintiff’s Motions In Limine No. 10 – Granted

 

  • Defendant’s Motion In Limine No. 1 – Granted
  • Defendant’s Motion In Limine No. 2 – Denied
  • Defendant’s Motion In Limine No. 3 – Granted
  • Defendant’s Motion In Limine No. 4 – Granted
  • Defendant’s Motion In Limine No. 5 – Granted
  • Defendant’s Motion In Limine No. 6 – Granted
  • Defendant’s Motion In Limine No. 7 – Denied
  • Defendant’s Motion In Limine No. 8 – Denied
  • Defendant’s Motion In Limine No. 9 – Granted

So what the heck just happened?  Well, first of all, each party submitted motions in limine to Judge R. Gary Klausner on December 16 asking for certain pieces of evidence and witnesses (including me!) to be excluded from being presented or mentioned during the trial.  I wrote about all of those 19 motions in a 4-part blog starting here.  (It’s nice light reading.)

Then, last Friday, both the plaintiffs and the defense submitted 19 separate OPPOSITIONS to those 19 motions in limine…which I’ve collected for your reading pleasure into this single 143-page PDF: Oppositions to Motions In Limine.  (Yeah, talk about light reading!)

I’d actually begun preparing one of my meticulously entertaining  (or entertainingly meticulous) blog analyses of those oppositions, but I got sidetracked on blogs about the Judge’s ruling on fair use last Wednesday , the likelihood of a successful appeal, and a possible trip to the Supreme Court.  And and much as I was looking forward to reading through and summarizing 143 pages of dense legal arguments, that all seems like “old news” now that we’ve got this TENTATIVE (ALL CAPS!!!) ruling to look at.

So let’s look, shall we…?

Did I mention it was TENTATIVE?  Did I mention that the judge actually put the word TENTATIVE in ALL CAPS?  I did?  Good.  Because it’s TENTATIVE!!!

Okay, so here’s what typically happens at a trial.  The judge issues TENTATIVE rulings prior to hearing oral arguments (to better guide the attorneys in knowing what to argue hardest for).  Those oral arguments were scheduled for Monday morning in Judge Klausner’s courtroom, and the opposition motions were filed at midnight Friday night.  So unless the judge read through 143 pages over the weekend and meticulously pondered everything in them before 9:00 a.m. Monday morning, he likely did NOT read the oppositions yet.

Also, there are still REPLIES to those oppositions due on Friday, January 20.  So Judge Klausner’s final rulings on these 19 motions will likely come during the week just before trial begins on Tuesday, January 31.

So really, all we can do right now is read the tea leaves…and actually, not even that.  Judge’s opinions on motions like this can change drastically as he or she hears more arguments and gets additional information.  In fact, Judge Klausner’s rulings are very likely to change in at least a few matters, as some of them actually contradict each other and even contradict the judge himself.

So without taking these TENTATIVE rulings too seriously, let’s do a quick review and see what is and is not on the initial legal chopping block…

P1 – Plaintiffs want the judge to exclude Alec Peters’ revised financial statement.  DENIED

The plaintiffs wanted to only include the initial financials where all of Alec Peters expenses were reported without specifying which expenses came from donor funds and which he paid for himself.  This made it look like Alec was using donor funds to repair his car and go to expensive restaurants.  The new financial statement includes the $150,000 (reportedly) that Alec put in from his own money and attributes it to personal expenses…making Alec no longer look like a crook.  Obviously, the plaintiffs want him to look like a crook…or at least someone personally profiting off of Axanar.

P2 – Plaintiffs want the judge to exclude from evidence any version of the Axanar feature film script written after the filing of the lawsuit and limit evidence to ONLY the script in existence on the day the lawsuit was filed (December 29, 2015).  GRANTED

We’re going to come back to this one, but please record it in your memory banks for later retrieval in Part 2.

P3 – Plaintiffs want to exclude any testimony and evidence from J.J. Abrams and Justin Lin.  GRANTED

The idea, I suppose, is that JJ and Justin would be very supportive of fan films in general, and this could influence the jury into thinking that Axanar was, in fact, a GOOD thing for the studios that helped energize the fan base.  Also, both men reportedly felt that Garth was not a major character in Star Trek.  And finally, being directors of Star Trek studio films and famous, their testimony would likely pack more “punch” than say, some unknown Trekkie fan film blogger.

P4 – Plaintiffs want to exclude any testimony and evidence from Reece Watkins.  GRANTED

My virtual buddy Reece is a fellow Axanerd with lots of Facebook evidence that the fans were energized by Axanar and that donors who supported the project weren’t holding back their dollars from Star Trek simply because they were contributing to Axanar.  Not something the plaintiffs want the jury to even consider.

P5 – Plaintiffs want to exclude any testimony and evidence from Jonathan Lane.  GRANTED

Oh, pooh!  Well, at least I don’t have to worry about finding someone to pick up Jayden from school at 3:00pm on the day I testify.

Actually, this is one of those somewhat confusing rulings from the judge.  You see, in his Order on Motion for Partial Summary Judgment from last Wednesday, Judge Klausner actually referenced my History of Star Trek Fan Films document specifically in support of his own opinion denying a summary judgment ruling of willful infringement and instead leaving it for the jury (see page 14).  So if the judge himself used my document in his ruling, it seems odd that he would exclude both it and me.  That said, I’m not getting my expectations up one way or the other.

P6 – Plaintiffs want to exclude any testimony and documents about other Star Trek fan films.  UNDER SUBMISSION

That means the judge is still thinking about it.  Obviously, the plaintiffs don’t want the jury to see or know about any other fan films, as the more fan films they know were never challenged by the studios, the more likely they are to find any infringement non-willful.  Also, if the jury is shown some of the most substantially similar Trek fan films like Star Trek Continues and New Voyages, they might judge Axanar to be less substantially similar and possibly only somewhat similar.

Based on the judge’s ruling from last Wednesday, it would be surprising (and possibly even another grounds for appeal) if both P5 and P6 both wind up denied.

P7 – Plaintiffs want to exclude any mention of Alec Peters’ previous professional relationship with CBS and Paramount.  GRANTED

Considering that the plaintiffs specifically mentioned Alec Peters “tattling” on other fan films to the studio in one of their motions, it’s amusing that they want to exclude that very e-mail that shows it (since Alec was for the studios at the time and such a professional relationship would have to be explained to the jury).  That said, the “tattling” kinda backfired on the plaintiffs, as it led the judge to write his opinion about Alec Peters’ respect for the franchise property.  On the other hand, if the judge referenced Alec’s previous relationship with the studios in his last Wednesday ruling then, once again, one wonders why the judge is granting the motion to keep that evidence away from the jury.

Obviously, the plaintiffs don’t want the jury knowing Alec had a close and respectful professional working relationship with the studios prior to making Axanar.  That undercuts their argument that Alec was just a common infringer trying to steal something that wasn’t his.

P8 – Plaintiffs want nothing in evidence that was created or released after the lawsuit was filed December 29, 2015.  GRANTED

This one has left a lot of folks scratching their heads.  First of all, the plaintiffs kinda already covered this in P1, P2, and P3.  Alec’s revised scripts, revised financials, and JJ and Justin’s comments all happened post-lawsuit.  However, the likely reason the plaintiffs added the kitchen sink here is that this would also include facts like the release of the fan film guidelines and James Cawley getting a license for his fan film studio to be an official set tour (whether or not that’s relevant).

However, where the plaintiffs could shoot themselves in the foot with this motion is that it would also exclude BOTH of Alec Peter’s financial statements (including the first one that the plaintiffs WANT to share with the jury that he submitted to the plaintiffs this past summer).  Also, the plaintiffs want to use as evidence social media posts and e-mails from Alec Peters written after the lawsuit was filed.  Those would also be excluded by this motion being granted.

Anyway, this is one of those rulings that contradicts another ruling.  P1 was DENIED, meaning that Alec’s latest financial statement (produced just two months ago) is allowed into evidence.  Granting this motion negates that other motion.

P9 – Plaintiffs want to exclude any testimony and evidence from Christian Tregillis.  DENIED

Finally!  The judge DOESN’T toss out a witness!  Tregillis is a financial expert who is willing to testify as to the likely financial impact of Axanar on the studios’ revenue (and one would assume the answer is “not much”).  The studios, of course, want the jury to think it’s potentially HUGE!  Now, you might think that the financial impact of Axanar is no longer relevant.  After all, financial harm to the copyright holder is one of the four elements of fair use, and fair use is no longer being allowed as a defense in this case.

However, the studios have not yet said whether they will seek actual or statutory damages.  If they seek the former, then the amount of damages becomes a crucial factor in determining the jury award in the case if infringement is proven.  And that’s why this is the one witness who hasn’t been excluded yet.

P10 – Plaintiffs want to exclude any testimony and evidence from Professor Henry Jenkins.  GRANTED

Okay, back to tossing out witnesses!  (I don’t feel quite so bad anymore.)  Professor Jenkins has written over a dozen books and is about as close as you can get to a leading world expert on science fiction fans and their endeavors to embrace their love of the genre and specific properties though fan fiction and fan film creation.  He’ll likely talk to the jury about how fan films help studio franchises, and how Alec Peters was reasonable in assuming he was not doing anything the studios would find objectionable.  Not a good witness for the plaintiffs to allow, so they challenged him and have, for the moment, seemingly won.


Okay, tomorrow in Part 2 we tackle the nine TENTATIVE rulings by the judge on the defense’s motions in limine!  Will the attorneys actually get to say the words “Star Trek” during the trial?  Is the judge planning to take Garth and Soval out of play (along with just about everything else in Prelude?  The excitement (and confusion) builds!

22 thoughts on “JUDGE issues TENTATIVE rulings on EXCLUSIONS in the AXANAR LAWSUIT! (Part 1)”

    1. Tentative rulings on stuff like this are not over changes. They can be, but isn’t very common.

      The big thing is some clarification is needed on some of these since a deny doesn’t mean the whole thing is denied but could be just parts of it. .

  1. I wonder what kinds of political donations this judge was promised, and of course it will be given through surrogates. This absolutely smells, that anything that makes Alex look good, or better yet, supports his defense is tossed, I can not wait till tomorrow to see where the judge crushes Axanar. I’ll dive into the monster doc. tonight. I mean, what the hell are they even having this show trial for in the first place? This judge is dirty I tell you.

    1. I almost didn’t approve this comment, but I wanted to issue forth a new rule: NO CALLING ANY JUDGE DIRTY OR CROOKED OR ON-THE-TAKE! Unless you have hard, conclusive, objective evidence or proof (and him issuing rulings you don’t like does not count), posters to this must MUST treat Judge Klausner with respect. PERIOD. EXCLAMATION POINT!

    2. Disagree. If you look at the ruling as a whole covering both plantiff and defendent it is clear what the Judge is trying to do.

      As think most on here know there has been a lot of drama and different issues from coffee to personal attacks, etc. all around Axanar especially since the lawsuit. If you look at all the rulings together the judge is very clearly trying to cut out all the irrelevant stuff around Axanar and get to the heart of the matter of did they infringe copyright or not.

      This looks like an attempt to remove all confusing distractions from the case and focus just on the copyright infringement and he did that to both sides.

  2. Also it is worth remembering that if only part if a motion is denied then the whole motion is listed as denied when the entire motion wasn’t denied.

  3. You may go down in Legal History.
    A Lane Appeal ” Where a Judge cites a document in order to justify a ruling and then excludes the document from trial”

  4. At oral arguements does the judge ask questions? It seems impropper for a judge to prevent a witness in this case. I mean we are dealing with scifi. There are no professional credentials that certify experts.

  5. I would say that denying of Alec’s prior ties to CBS (assuming I understood your commentary right) is telling. You mentioned he “tattled” on other fan films. Well, I definitely would say Continues and New Voyages/Phase 2 (both GREAT fan film series’) would be closer to the premise of Star Trek than Axanar. They were directly tied to TOS. This was a one hit wonder character (Garth) and a discarded war (never really focused on in the films and TV) being used for a whole new plot line.

    Honestly, my opinion ONLY… When I heard about Star Trek Discovery, I was excited, but seeing all the development, I am pretty sure it will be horrible. This coming from a HUGE Star Trek fan. The ONLY reason I will probably check it out is because of the fire that shows like Axanar, Continues and New Voyages keep burning in my soul to see Star Trek on the screen.

    Feel free to enter that into evidence ads proof fan films do not hurt the studio, but they help this Trekkie want to see it.

  6. To me, most of this is terrible for Axanar. The court appears to be limiting the trial to how much money the damages will be, not whether or not a fan film can be made.

  7. I don’t think calling the judge hostile is fair.

    His job is to look at all the evidence and make the rulings on law he is allowed. And he has seen evidence we all have not as well that the rulings are based on.

    And be honest…it was always known that Axanar getting any kind of substantial win was a long shot. His rulings so far bear out that long shot premise.

    Now…if one wants to go down the fair use avenue and this should be part of the jury trial…because this is how it was done historically isnt entirely fair either. Klausner based his ruling on the current practiced application of this particular point by the courts (not some kneejerk ruling on his own).

    If that should be an item for the supreme court to decide fair usevalways needs to be put in front of a jury fair enough…but him making the ruling is sound based on todays application of the law.

    If one simply disagrees with his denial of fair use itself…that is also fair…Axanar will have its opportunity to appeal.

    1. “Hostile judge” is a common term used by lawyers, Brian. One of my legal eagles and the lawyer I just interviewed for next week both used to the term with me. Obviously, Loeb and Loeb doesn’t see the judge as hostile, but Winston & Strawn aren’t too thrilled with him thus far. He’s essentially set up Axanar for a very slim chance of victory, and he knows it. There’s nothing against the law in what rulings the judge has handed down, although there is a question of Seventh Amendment rights that could come up on appeal.

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