Remember back in the first half of this year when the initial documents were being filed in the Axanar lawsuit? Remember how each time one side or the other would submit their latest filing, it would suddenly look like it was “game, set, and match?” And then the other side would respond, and it would seem like a knockout blow for that side. And on and on.
Well, history seems to be repeating itself…
Last Thursday, the plaintiffs in the Axanar copyright infringement lawsuit filed a massive 122-page ex parte (emergency) application for order requesting three judicial rulings from Magistrate Judge Charles Eick:
- Alec Peters must sit for additional deposition questions concerning new e-mails that were just discovered by the plaintiffs last Saturday.
- The financials submitted by the defense should be de-designated by the court from “Highly Confidential” (lawyers’-eyes-only) to publicly available.
- Defense must provide a privilege log.
In the long filing, the plaintiffs made a litany of accusations against the defendant and his legal team, including failure to turn over e-mails, refusal of the defendant’s attorney to provide a privilege log, attempting to hide previous communications between Alec and other attorneys prior to the filing of the lawsuit, not responding to communications from the plaintiffs’ attorneys, refusing to provide text messages and social media postings, and a whole slew of other items that I won’t bother listing due to blog length considerations (just read the first 18 pages of the application).
Well, it didn’t take long for defense attorney Erin Ranahan to file a response, and let me tell ya, she pulled NO punches in hitting back and hitting back hard! In short, Erin Ranahan did the following:
- Accused the plaintiffs of violating the court’s rules for procedure.
- Pointed out that, in doing so, the plaintiffs were wasting the court’s time and resources.
- Accused the plaintiffs of violating confidentiality on multiple occasions (and not just leaking stuff to the Axanar detractors).
- Accused the plaintiffs of misrepresenting facts (i.e. lying) in an ex parte filing…which is a huge no-no.
- Asked the judge for sanctions against the plaintiffs for doing the above.
Also–and you know how I love the word “bombshell”–but there was a HUGE bombshell from the filing which I am FINALLY able to share with all of you (and hopefully it will reach the detractor “peanut gallery, as well)…
ALEC PETERS DID NOT WITHHOLD A SINGLE E-MAIL FROM THE PLAINTIFFS!
Yep, you read that right. I’ve kinda known the behind-the-scenes story for a while, but I didn’t feel comfortable saying anything until I saw Ms. Ranahan mention the e-mail production process in her latest filing (see page 14). So now it can be revealed how I am so certain that Alec did not withhold sending any e-mails to the plaintiffs.
Alec WASN’T THE ONE who sent the e-mails to the plaintiffs!!!
So here’s what usually happens in cases where a whole bunch of e-mails need to be turned over to another party (or their attorneys) during discovery. Except in very rare instances, the actual defendant (or plaintiff) doesn’t send anything directly to the other side. To quote Ghostbusters, “That would be BAD.” Attorneys know best what should and should not be shared, and so their clients are mostly kept off of the legal battlefield. Instead, they hand everything over to their attorneys and the attorneys decide what is relevant and what is not.
How do they do this?
Well, it depends on how many e-mails we’re talking about. In the case of Paramount (who has, to my knowledge, still turned over ZERO e-mails), there are WAAAAAY too many employees and e-mails to search through every one. So if you look at pages 117-118 of Thursday’s application filing, you’ll see that, at least for Paramount, 20 employees (custodians) were determined to have been most likely to have discussed Axanar, Alec Peters, and/or Star Trek fan films. Now, each of these people probably had tens of thousands of e-mails (possibly hundreds) to sort through. So to save time, certain keywords were searched for. We don’t know what words they used (although the defense definitely WANTS to know because, well, ZERO e-mails produced!), but it’s likely to include “Axanar,” “Alec Peters,” S”tar Trek,” and “fan films”…among others.
In the case of Alec’s e-mails, there probably weren’t as many, but still a lot. So I’m certain there was a keyword search done as well at the Winston & Strawn offices to pull out the most obvious ones. And then they dove deeper to do a more thorough review. In the end, Erin Ranahan and her team determined which e-mails were relevant and then turned those over to the plaintiffs’ attorneys.
So the only thing Alec did in all of this was to copy his entire e-mail and documents folders onto a flash drive and hand it over to his legal team. Anyone attempting to accuse Alec Peters of some kind of shenanigans in purposefully refusing to or failing to turn over any e-mails that he had for discovery must now face the reality that such an action has never happened.
I hope the above 4-5 paragraphs will finally put this little tempest in a teapot to rest…although the cynic in me kinda doubts it.
Okay, back to the defense’s response…
To provide an idea of the hard-hitting tone of this filing (which was certainly matched by the hard-hitting tone of the previous filing from the plaintiffs), I’d like to share with you what I (and likely the judge, as well) saw first…
Plaintiffs’ Ex Parte Application is not only procedurally improper, it is wholly unnecessary. By their Ex Parte Application, Plaintiffs belatedly seek to raise discovery issues in contravention of the Court’s rules and are wasting the Court’s time and resources on issues that Defendants have already agreed on, or which Defendants have been trying to resolve with Plaintiffs while Plaintiffs have refused to engage in productive discussions. Even if the Court reaches the merits of the belatedly-raised discovery issues, the relief sought is mooted by offers made by Defendants—both in writing and in person—before Plaintiffs filed their Ex Parte Application. Indeed, Defendants have already offered to make Alec Peters available for a second deposition; have repeatedly attempted to meet and confer with Plaintiffs about parameters of the privilege log before preparing it; and Defendants informed Plaintiffs that they are making an additional production today that will moot the remaining issues. Plaintiffs’ counsel did not respond to these offers, making clear that Plaintiffs had committed to file their Ex Parte Application regardless of Defendants’ response. But Plaintiffs fall far short of demonstrating that they are entitled to the extraordinary relief.
To understand this first paragraph and much of the rest of this filing, we need to pause a moment and talk briefly about Magistrate Judge Eick. A bit of an amusing coincidence happened the Saturday evening before the Friday Axanar hearing. There was a dinner party for the parents of my son’s classmates, and one of the moms is an attorney. She and my wife were talking shop, and I heard this woman mention that she’d be arguing in front of Judge Eick on Monday. I came out of my glazed stupor to ask her, “Is that Judge Charles Eick?” She said yes, and I suddenly perked up, joined the conversation, and asked her what she knew about him (explaining a little about the Axanar case, which she’d heard about but thought it had settled).
According to this woman, the judge is VERY thorough and doesn’t like any attorney to play fast and loose with the rules. He’s fair but very strict, and he’s been known to chastise attorneys in open court.
The following Friday, I saw exactly what she was talking about! After the hearing was over, I later joked that Magistrate Judge Eick was four parts law professor and six parts Louis Gossett, Jr. in An Officer and a Gentleman (just more of an older white guy version). Erin Ranahan spoke first, and during her 55 minute presentation, the judge interrupted her frequently and lectured her (often sternly) on the proper way she SHOULD have filled out the motion to compel discovery. Every little mistake was examined under a microscope (or so it seemed to me), and as I watched the smackdown, I thought to myself, “Damn, Alec is soooo screwed!” But then it was the plaintiffs’ turn, and Loeb & Loeb attorney Jonathan Zavin was given the same excruciating treatment. By the end of the two-plus hours of this punishing endurance match, I didn’t know what would happen…and neither did either of the attorneys. But I thanked my lucky stars that I wasn’t in their shoes!
And so, now that you know this, you can better understand the strategy of the defense response in this. First of all, Erin Ranahan establishes that the three orders the plaintiffs are asking for are all essentially moot at :
- Alec Peters has already agreed to be deposed again (the only question is how long the plaintiffs get to question him).
- The proper financials that the plaintiff referred to, now that they’ve been properly prepared by an accountant, no longer need to be marked “Highly Confidential” and the defense team is allowing them to just be marked “Confidential.” That means either party can see them…not just the attorneys. Whether they’ll be de-designated from “Confidential” to totally open to the public is a question for the judge, but my legal source says it’s probably enough for the judge that the defense is stipulating to dropping the “Highly.” It’s a good meet-in-the-middle compromise…and judges usually like those.
- The defense has repeatedly offered to produce a privilege log, so no special order is needed there either.
In other words, everything the plaintiffs just tried to do with a 122-page filing was A COMPLETE WASTE OF THE COURT’S TIME (and the defense team’s). Now, remember what I just said about Magistrate Judge Eick being totally by the book? Well, take a look at another snippet from the response (page 4):
[E]x parte applications throw the system out of whack. They impose an unnecessary administrative burden on the court and an unnecessary adversarial burden on counsel who are required to make a hurried response under pressure, usually for no good reason. Such applications allow the applicant to jump ‘ahead of the pack’ and ‘cut in line ahead of those litigants awaiting determination of their properly noticed and timely filed motions.
But wait, there’s more. Apparently, misusing the ex parte application process can result in sanctions (in fact, it’s rule #1):
Citing Mission Power, this Court’s first procedural rule cautions against the misuse of ex parte applications, noting that: “Ex parte applications are ONLY for extraordinary relief. Sanctions may be imposed for misuse of ex parte applications.”
Judge Eick already knows all of this, of course. But like any good “law professor,” he likes knowing that his “students” did the reading, too. Well, at least one did. The other? Well, let me hand the virtual mic back to Erin Ranahan…
Plaintiffs apparently do not believe these rules apply to them, waiting until just a few days before the close of the discovery to seek Ex Parte relief about various discovery issues for which there is no timely-filed motion, no Local Rule 37 joint stipulation, and Plaintiffs appear in denial about the offers Defendants made that render moot Plaintiffs’ requested relief.
Back in court last Friday, the judge frequently pointed out to each attorney that the time and place to submit any statement to the court was in the joint stipulation motion to compel discovery, not during the hearing or sometime later. Much of what Erin says in her response filing pretty much says to the judge that she was listening to him while opposing counsel apparently was not.
The defense then went on to bring up something that I mentioned in my previous blog: that the final financial summary from the accountant that the plaintiffs wanted de-designated from “Highly Classified” had NOT been delivered to the plaintiffs yet when they filed their 122-page application document!
Contrary to Plaintiffs’ representation in their Ex Parte Application, these notes were not prepared by an accountant, but were notes by Alec Peters. This information is currently being reviewed by an accountant. As Defendants have explained, these were preliminary notes from Quicken and were not a final accounting, which is still being prepared.
Erin also made an interesting point. The funds raised for Axanar (the full feature) were never entirely used for Axanar because production was halted due to the lawsuit:
How Defendants specifically spent funds that were donated by enthusiastic fans for Axanar projects—one of which is not even complete because this lawsuit interrupted it—has no bearing on any issue in this case. Plaintiffs obviously have no standing to scrutinize or complain about money not going to the fan film they are trying to shut down.
I really can’t think of a good way to argue against that statement, but I’m sure someone will at least try.
Although there’s a lot more in the defense response, I don’t want this blog to go on too long (or rather, it already has). So instead, I’ll wrap by focusing on one final point that Erin Ranahan made about the plaintiffs and respecting confidentiality. And frankly, I can’t say it any better than she did:
Plaintiffs have been careless and disregarded confidentiality agreements in this case on several occasions, including (i) after originally claiming that the fact of the settlement discussions should remain confidential, Plaintiffs made a public announcement about these ongoing discussions; (ii) allowing a non-attorney to view an “attorneys eyes only” document during a deposition; (iii) describing these financial documents in various pleadings without redacting or seeking to file this information under seal; and (iv) citing information from depositions in their Ex Parte Application when it was agreed that all deposition testimony would be treated as confidential until further discussion. [Ranahan Decl., ¶ 14] Plaintiffs are also in frequent contact with individuals who have made clear that it is their goal to leak Axanar and Mr. Peters’ confidential information. In any event, and despite the serious concerns Defendants have about Plaintiffs’ disregard for honoring the confidentiality designations made in this case, and even though Defendants intend to contest the relevance of this information if Plaintiffs seek to introduce it, Defendants had already planned and indeed did produce a revised version of Mr. Peters’ Quicken notes today (Friday, October 28) that will be designated only “confidential,” which moots this issue. Defendants would expect that going forward, Plaintiffs would take better care in honoring the confidentiality designations governing this case.
I’ve noticed a certain cavalier, almost smug, attitude among some Axanar detractors about disseminating privileged information as though this were some kind of Wikileaks dump of stolen Clinton data. Carlos Pedraza even went so far as to call his efforts “hard-hitting reporting” (implying that my efforts aren’t). But there is a very important distinction here. Beyond keeping my sources anonymous, I am also respecting the confidentiality of this case, as are both Alec Peters and Erin Ranahan, whom I talk with from time to time and are repeatedly reminding me that, no, they can’t speak on the record or answer this or that question.
The more Carlos Pedraza and others report on privileged “inside information” from this case, the more they put the studios at risk because that information has to be coming from somewhere–and it’s certainly not the defense! And anyone who is leaking privileged information is quite possibly damaging the chances in the case for the plaintiffs. Sanctions have now been requested by the defense.
One side is playing by the rules here, and one side isn’t. Although sanctions are rarely imposed, it’s not entirely unheard of. And if any judge is going to be serious about making sure the rules are followed, I have a gut feeling it’s gonna be Charles Eick.
We’ll know more soon. As of Monday, there are only two and a half days left in the discovery period and so the judge will likely rule on the ex parte application as early as tomorrow.