Man, just when you thought we’d go at least a few days without a long AXANAR post! But hell hath no fury like a pair of studios compelled by a judge to produce a ton of discovery documentation and new witnesses to depose.
So what the heck just happened? Well, long story short, yesterday the plaintiffs attorneys in the case filed a 122-page ex parte (emergency) application for a judge’s order of relief while still in the discovery phase of the case. Time was running out (discovery ends on Wednesday!) and the plaintiffs couldn’t wait to jointly approach the judge for a fast resolution. And what are they trying to resolve?
Well, now it’s time for short story long. Strap in, folks–’cause a LOT has happened in the last seven days!
So the biggest bombshell came last Saturday during the deposition (lawyer interview of a witness) of Christian Gossett, who directed Prelude to Axanar. Last week in court, plaintiffs’ attorney Jonathan Zavin made the following statement to the judge: “My co-counsel reminds me that there were documents produced from CBS with respect to discussion on other fan films. And interestingly, some of those documents were between CBS and the individual defendant in this matter, and CBS produced those documents and the defendant did not.” The judge didn’t respond and instead asked Axanar attorney Erin Ranahan if she had any further comment.
As one of my legal sources said, such a comment was irrelevant for two reasons. One, CBS already possessed the e-mails in question since they were the ones who sent them to Alec in the first place. So there was no need to compel his production of them at this point. And two, had the plaintiffs wanted Alec to produce more e-mails because of this failure to turn over certain relevant e-mails, then the time to mention it had passed. Ninth Circuit Federal Court guidelines allow for only one motion to compel discovery to be filed jointly by the two parties. The studios didn’t take that opportunity to request anything else from Alec, and so–apparently–it is now too late to ask for anything more. Or is it?
That was Friday. Then came Saturday.
During his deposition, Christian Gossett turned over thousands of his e-mails related to Axanar, and among them were apparently a hundred-or-so to and from Alec Peters pertaining specifically to the Axanar production. These e-mails include discussions of Klingons and Vulcans in the film, the use of Constitution-class vessels, and a number of other things that would, I’m assuming, paint a picture of a man who knew he was using intellectual property that he himself did not own (unless Star Trek really does belong “to all of us”–as Justin Lin tweeted–and, no, legally it does not).
So armed with this late-breaking discovery of Alec’s failure to turn over all relevant e-mails, the plaintiffs have asked the judge for the following relief (i.e. an order from the court):
Plaintiffs are requesting that Mr. Peters and his counsel confirm that he has produced all relevant emails, documents and social media postings and, thereafter, sit for a further deposition so that he can be examined regarding the documents that other witnesses have produced, that Mr. Peters is still in the process of producing this week, and any other documents that are turned over prior to that supplemental deposition.
We’ll dive more deeply into what this means for both sides shortly, including the stuff about social media postings and Alec sitting for further deposition. But first, I want to cover the other items that the plaintiffs want the judge to order.
Plaintiffs request that the Court order the de-designation of a financial summary prepared by Mr. Peters’ accountant that was marked as “Highly Confidential” or “Attorneys’ Eyes Only” as it is not a trade secret and does not otherwise contain competitively-sensitive information. Defendants request that this document be deemed not Confidential Information under the Court’s Protective Order.
Apparently, in order to keep Alec Peters’ finances “Highly Confidential” (meaning that not even the parties involved in the lawsuit can see them–only the lawyers), Axanar attorney–according to the plaintiffs–argued that…
…the public disclosure of the ways in which Mr. Peters spent funds from Star Trek fans could cause embarrassment for Mr. Peters.
OUCH! But as it happens, this one is actually a little misleading and might be more problematic for the plaintiffs than for the defense. Again, I’ll explain why shortly.
There was one final request made in the ex parte application filing:
Plaintiffs request that the Court require Defendants to provide a privilege log relating to Mr. Peters’ pre-lawsuit communications with counsel.
This stems from a belief that Alec Peters and his attorneys will use, as an excuse for not turning things over, that certain documents were privileged (attorney/client and the such) and are therefore protected from being produced during discovery. The studios tried the same excuse–and it’s very, very common in many civil lawsuits. And that’s why the good lord created the “privilege log.” In short, it’s a list of everything one side is NOT turning over to the other side and WHY. It’s very important to include the “why” because the other side can then challenge the reason(s) and say, “Sorry, that’s not a good enough excuse. Judge, please order these guys to hand it over.”
Last Friday, the judge granted the defense’s motion to require the plaintiffs to turn over their privilege log. Well, turnabout is fair play, it seems, because now they’re asking the judge to order the defense to do the same. However, I seem to recall the defense already offering to produce a privilege log during last week’s hearing. If so, then this particular request might be moot.
WHAT ALL THIS MEANS AND WHAT WILL HAPPEN NEXT
Well, folks, there’s a LOT more that is going to happen in the last five and a half days of discovery…beginning with (most likely) an ex parte RESPONSE from Erin Ranahan. Then the judge has to rule on the plaintiffs’ three requests for relief. And anything could happen right now. As such, I will focus more on potential strategies and arguments that might be employed in the days to come and at trial.
So let’s begin diving deeper, starting with those damn e-mails…
But before I look at whether or not the e-mails themselves are that damning, it should first be pointed out the the main focus is on the plaintiffs’ request itself: that Alec Peters should be deposed again by the studios’ attorneys and discuss the content of those newly-discovered e-mails. At first, Erin Ranahan resisted having Alec appear again. But later she said Alec would provide up to two hours in a second deposition. The plaintiffs want him back for questioning but with NO time limit.
So there’s no question that Alec will be deposed again, since he’s already agreed to that. The only unknown is whether there will be a two-hour limit or not and will there be any limitations on which e-mails can be discussed.
As for the e-mails themselves, I’ve heard them being described by one insider using a quote from Ghostbusters (“I’ve seen some $#*! that’ll turn you white!”), but I can’t really imagine the e-mails being all that harmful. At worst, they will show that Alec knowingly used Vulcans, Klingons, etc. in writing his script, making his costumes, etc.–all with the ultimate goal of producing and releasing a film based on Star Trek that, for over a year, even had the name “Star Trek” in the title.
Of course, it was never a secret that Alec was making a Star Trek film. Even the Axanar Kickstarter and Indiegogo pages both said, “Star Trek” is a licensed property of CBS and so they have the final say in any Star Trek venture. The defense won’t be arguing that Alec didn’t know he was infringing but rather that he had a reasonable expectation to assume that the studios were okay with fans infringing in the form of fan films based on the studios history of permitting (and even at one point assisting) their existence.
The plaintiffs also complained about the e-mails that Alec had already tuned over being non-substantive, which caused me a little moment of amused deja vu, as I’d heard the same complaint from the defense about the studios’ documentation! So yeah, it’s typical.
Also, the plaintiffs took issue with some of the Axanar staffers not turning over enough e-mails or other records either, including Bill Hunt, Diana Kingsbury, and particular Robert Meyer Burnett (who was to be directing the Axanar movie). Specifically, they said this:
Mr. Burnett has not produced any documents or communications relating to his involvement with the Axanar project; Plaintiffs believe that the Court should order that Mr. Burnett and Mr. Peters certify that all responsive documents (including emails, social media and internet postings and text messages) have been produced.
Of everything in the filing, this one seemed, to me at least, the weakest point. For one thing, the social media and Internet postings are public–as Erin Ranahan mentioned in an e-mail submitted as an exhibit within the latest filing–and therefore accessible to the plaintiffs at any time simply by going to the Axanar Facebook page or any number of other public social media pages. But more important–and something I will bet you that the defense brings up if/when they respond–is that it’s too late to add social media files to the discovery request list. The time to request those items was at the start of discovery and, if not delivered in a timely fashion, then in the joint stipulation motion to compel discovery that was filed on September 29. The plaintiffs are a month late asking for anything else other than a new deposition from Alec.
Some folks have posted comments suggesting that the plaintiffs will bring up in trial Alec’s failure to provide all his e-mails as a way to prejudice the jury against him. To be honest, I think it will go in the opposite direction! I suspect the defense will bring up the fact that Paramount failed to deliver a single e-mail. Remember that Paramount joined this case as a co-plaintiff because, according to their joint complaint with CBS, Paramount was concerned about Axanar damaging the market for their Star Trek films. Well, then riddle me this, Batman: If Paramount was concerned enough about Axanar to sue Alec Peters, then why were there no Paramount e-mails found when the terms “Axanar” and “Alec Peters” were searched for?
If it turns out that Paramount never had any e-mails about Axanar sent back-and-forth within their organization–not even saying, “We have a 4:00 meeting to discuss Axanar,”–well…check out my last Axanar blog for an explanation of a Rule 11 violation.
The next point of contention is Alec’s financials, which the plaintiffs want reclassified from “Highly Confidential” or “Attorneys’ Eyes Only” (meaning not even the studio executives can see them) to “Not Confidential” (meaning anyone can see them during discovery and they can be brought up at trial, as well. And apparently, the reason Axanar attorney Erin Ranahan gave for classifying them was that the public seeing how Alec Peters spent donor money would embarrass him. This smelled a little fishy to me, as it’s not like Erin Rahanan to say something so sloppy and potentially damaging to her client. So I dug a little deeper…
Remember that, in the request, the plaintiffs listed the item as “a financial summary prepared by Mr. Peters’ accountant.” Well, I knew Alec was working on such a document, but I didn’t think it was finished yet. And then I looked at Exhibit G (see page 155 of the plaintiffs’ application document) and saw that Erin Ranahan had written the following within hours of the most recent filing was submitted:
We are not willing to de-designate the financial information, which contain Alec’s preliminary Quicken notes, is not verified by any accounting, and is currently in the process of being reviewed by the accountant.
So I was right! The two attorneys are NOT talking about the same thing. In fact, the plaintiffs are to de declassify a document that they don’t even have yet and have never even seen! And of course Alec’s preliminary Quicken notes, unverified by an account, might indeed be embarrassing. Alec already screwed up once by calling his reimbursement of invested expenses a “salary.” Alec is not an accountant, so yes, any accounting he tried to do on his own might be (to quote Erin Ranahan)…
…misused by those that have a personal vendetta to destroy Alec’s lifelong fanhood, finances, reputation, and dreams of creating Axanar. This includes not only Plaintiffs, but third parties who have had extensive discussions with Plaintiffs and seek to leak information deemed confidential in the lawsuit in an effort to bring down Alec.
And oh look, there is a mole after all. But we all kind of knew that already.
Anyway, while it’s possible that the final accountant’s summary (which is apparently coming soon, since it hadn’t arrived by Thursday morning) might be only classified as “confidential” (without the “highly”–meaning all parties can view it, not just their lawyers, but it’s still considered non-disclosure during trial), I’m none too certain the plaintiffs will get the documents completely declassified as “public.” If that happens, my guess is that the defense would request the same status for the studio financials.
The last item is the easiest to discuss, as it seems the privilege log revolves mainly around a single question: did Alec speak with other attorneys before the lawsuit was filed? If so, the plaintiffs want to know what he talked about.
The origin of this request came from a single e-mail from Christian Gossett (you can view it on page 104 of the application) where Alec says:
Attached you will find a Certificate of Authorship for the work you did on Axanar and the $ 5,000 paid for such work. Please have your lawyer review, sign and return. My attorney is the same guy who handles Charlie and Rob.
Ah-hah! The smoking gun at last! Or so it seemed to the plaintiffs as they included the following accusation in their filing:
Defendants’ prior representations regarding Mr. Peters’ lack of any communications with counsel were not accurate. Plaintiffs request that the Court require Defendants to provide, in addition to the documents that were not produced, a privilege log relating to Mr. Peters’ pre-lawsuit communications with counsel.
However, looking back through Erin Ranahan’s e-mails to David Grossman, I found this (see pages 114-115):
…surely you do not believe that every communication Alec had with a lawyer is relevant to Axanar or should be logged. I have never represented that Alec has not had discussions with other lawyers at any point. What I intended with my last written communication on this was that when we collected all Axanar documents, we intentionally did not collect the attorney communications folder, so did not load them into the system, as it is an entire folder that is dedicated to Alec’s attorney discussions, for any matter, for any purpose. What I have now asked you multiple times, is–what attorney communications are you interested in us collecting, reviewing and including on the privilege log? I have still not been provided with a response. And for what requests do you believe these are called for? Perhaps it will be easier to discuss.
Reading through the back-and-forth e-mails between the two primary attorneys, there seems to be ample passive-aggression on both sides of the keyboard. (Although don’t be fooled. The lawyers were very friendly with each other in the courtroom before proceedings started. I was frankly shocked at how buddy-buddy everyone was.) But back to the e-mail from Erin.
I don’t know if this point will be something the judge considers when deciding on what should be in the privilege log, but it does seem an important question to consider. After all, if Alec hired a lawyer pre-lawsuit just to write up a standard Certificate of Authorship, that’s qualitatively different than discussing the legalities of his fan film project and planning contingencies if he’s ever sued. I’d assume the latter would be relevant (if such conversations ever took place, which it seems like they didn’t). But I suppose we’ll see.
It’s likely there will be a response filed by the defense…possibly even before the weekend is over. If that happens, then I’ll try to get something written up as fast as I can. But I have a busy next few days, so please bear with me, everyone.