So my best one-sentence summary of Magistrate Judge Charles Eick’s ex parte order in the Axanar lawsuit would be: “Move along folks; nothing to see here.” In other words, nothing really surprising happened (at least if you read my previous blog).
In short, the plaintiffs asked for three main things and got two and a half of them…maybe two and a quarter. But the thing is, they got what the defense was already offering. You order a drink, the waiter brings it. Done. So it was kind of anticlimactic.
Here’s the three things the plaintiffs wanted:
1. Alec Peters must sit for additional deposition questions concerning new e-mails that were just discovered by the plaintiffs on October 22
Here the defense had agreed for Alec to sit for up to two hours of questions. The plaintiffs wanted no time limit. The judge “split the pot” and gave them five hours…which should be plenty. Both sides should be happy here.
2. The financials submitted by the defense should be de-designated by the court from “Highly Confidential” (lawyers’-eyes-only) to publicly available.
As I previously stated, there is a compromise between “Highly Confidential” and “Public,” and it’s simply “Confidential.” The difference between “Highly Confidential” and “Confidential” is that in the case of the former, ONLY the attorneys in the case are allowed to see the document in question. Remove the “Highly” and the parties themselves are allowed to review it, as well. However, the document cannot be shared with the jury during trial unless the judge clears it later on.
This was kind of a win for the Axanar side since they had already offered to make Alec’s financial summary (the one prepared by the accountant, not the Quicken notes) simply “Confidential” and not “Highly Confidential.” They just didn’t want it cleared for public review because of the risk that Axanar detractors would misuse or misrepresent the information to damage Alec Peters’ professional reputation…regardless of whether their accusations were true. (Misunderstanding of proper accounting practices has already led to some incorrect conclusions and accusations from some quarters.)
Anyway, on this one, the judge agreed with the defense, although the plaintiffs did get the “Highly” removed. So this was the “half” I was talking about earlier.
3. Defense must provide a privilege log.
Least surprising of all of the non-surprises today was this one. The plaintiffs wanted a privilege log; the defense was willing to produce it. The judge essentially said, “Great. Do that, then.” Well, that’s not exactly what he said, but it was the gist.
So is anyone doing a happy dance right now, and is anyone kicking the can dejectedly down the sidewalk? Well, kinda. It all comes down to this comment from the judge’s ruling:
Notwithstanding the issues Plaintiffs have raised regarding the adequacy of Defendants’ document productions (based largely on information obtained in connection with the depositions taken in October of 2016), the Court will not require at this late date the effective recommencement of document searches, reviews and productions.
What does this mean? Well, the plaintiffs made a late request for additional searches and deliveries of e-mails, documents, social media postings, text messages, IM conversations, etc. As I mentioned, the time to ask for all of this was in the Joint Stipulation Motion to Compel Discovery document filed with the court on September 29. The plaintiffs waited an extra month to bring that stuff up.
Remember how I said previously that Magistrate Judge Eick was a stickler for proper procedure? Well, note the “at this late date” phrase that he inserted into the ruling. That was his way of saying, “You had your chance and blew it, dudes.” (Yeah, I know. Federal Circuit Court judges don’t use the word “dudes”…not even in Southern California.) But trust me, I don’t think the inclusion of that little prepositional phrase was an accident.
Honestly, I don’t know if the plaintiffs ever really expected to get all (or any) of that late-requested stuff. One of my legal contacts commented that he/she believed it was probably just done for “show” by the plaintiffs to demonstrate to the studios how tough and aggressive the Loeb & Loeb attorneys are being. After all, they’re charging CBS and Paramount a lot of money! But that’s pure conjecture, of course. Nevertheless, it was a pretty ballsy and aggressive heap of stuff to ask for with less than a week left to produce it all. And I’m sure the judge realized that, as well, and didn’t want to burden the defense unnecessarily.
And it’s not that awful of news for the plaintiffs, either. As was stated in the most recent documents filed with the court, all social media posts are publicly available anyway. It’s just now, if the plaintiffs want to fish for something juicy, they need to row out on the lake with their poles and fish (search for stuff) themselves.
There’s also a big silver lining for the plaintiffs right now. If you read the judge’s order, you’ll notice no sanctions against the plaintiffs. I’d say, “Whew! Dodged a bullet there…” except that the bullet was more of a poorly hit badminton shuttlecock. (Sounds worse than it is.) In other words, sanctions are seldom imposed unless one side or the other does something really bad. That said, if this is only a taste of the future behavior of the plaintiffs’ attorneys, the next judge ahead of them is the Honorable Robert Gary Klausner…and from what I hear, he doesn’t put up with shenanigans either.
So what’s next? Well, today the two sides are meeting for a court-ordered settlement discussion, facilitated by Magistrate Judge Eick. There’s no requirement for the sides to settle, but if they do–game over, man. No trial, and none of us will likely know what they agreed to. If they don’t settle, then expect a quiet three months (but still keep visiting FAN FILM FACTOR–because there’s more to fan films than just Axanar, folks!) and then the trial begins on January 31.