A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 3)

In Part 1, I explained what a motion in limine is, so at least I don’t have to go through that again!  And in Part 2, I took a look at the ten motions that the plaintiffs filed asking the judge in the AXANAR lawsuit to exclude specific evidence from trial and prevent certain key witnesses from testifying in front of the jury.

Today, it’s the defense attorneys’ turn under the FAN FILM FACTOR microscope.  And if you think I’m just going to back up Team Axanar on everything and let ’em glide through this analysis unscathed, then you’re gonna be very surprised.  I call ’em like I see ’em, and I freely admit that some of what the defense is asking the judge to exclude is pretty ballsy…in one case almost to the point of comedy relief (trying to exclude the words “Star Trek“–yep).  On the other hand, they also make a number of very solid points and might actually have a chance of winning a few.

And in the end, that’s what challenging evidence and witness testimony is all about.  Swing for the bleachers.  The worst that happens (assuming you don’t piss off the judge too much) is that he says no and you just have to work a little harder during trial.  But the rewards can be great if you do manage to take a key piece off the chess board.

Pat 2’s document with all ten motions from the plaintiffs was a whopping 63 pages!  But the defense has gone even MORE whoppy with 73 pages…even though they only have nine motions.  In other words, they wrote more for each one (meaning I’ve probably gotta write more, too!).

Here’s a PDF document with all nine of the defense’s in limine motions in it:

Defense Motions to Exclude

Now let’s take a look at what the defense team doesn’t want the jury to see or know about.  As I did in Part 2, I’m going to go through each motion and provide an overview of why the defense believes each item should be excluded…and also how that item could potentially hurt the defendants if it gets in front of the jury.

1. Any mention that Alec Peters tried to withhold evidence during the discovery phase of the case

Reason(s) the defense gives for excluding it – Things heated up pretty fast during discovery when the plaintiffs began to complain that Alec Peters had failed to produce all of his e-mails and texts and social media postings relevant to this case.  In fact, they even filed massive 122-page ex parte (emergency) application for order with Magistrate Judge Eick asking him to order Alec Peters sit for additional deposition questions about his missing e-mails (which was so ordered).

However, the plaintiffs now had a piece of juicy red meat and were serving it up in generous portions every chance they could.  The plaintiffs continued to bring up these so-called discovery “violations” of Alec Peters during the additional deposition questioning of him (they even asked him while he sat there to take out his cell phone and show them his texts!), and then later in their motion for summary judgment.  And one would assume that plaintiffs plan to bring the point up again in front of the jury…likely implying that Alec Peters was trying to gain an advantage in the case by withholding or suppressing evidence.

The only problem is: he didn’t.  The court never ruled that Alec Peters withheld evidence and never ordered that he turn over additional e-mails, texts, or Facebook posts.  Indeed, there was, arguably, more legal abuse done by the plaintiffs (who also withheld e-mails and text messages–Paramount delivered ZERO e-mails during discovery!) than by the defense.  But the defense at least complained about it before the deadline rather than waiting until after the deadline and just three days before the entire discovery period ended.  You can read more about those sehnanigans here.)

The reasons the defense gives for requesting the judge preclude the plaintiffs from mentioning any alleged discovery violations by Alec Peters during the trial are pretty obvious.  First, any attempt to paint Alec Peters in such a negative light will unquestionably prejudice the jury and taint their opinion of him.  Also, the information is simply not relevant to the case.  Alec Peters has been accused of copyright infringement, not of withholding evidence.  The latter accusation was already dismissed by Magistrate Judge Eick during the discovery phase.

Reason(s) it could hurt the defendants’ case – Well, I think I just said it.  Juries likely won’t trust a guy whom they’re led to believe withheld evidence for his own advantage in the case.  And since Alec Peters actually did no such thing (since it was actually his attorneys who turned over the e-mails), it’s a false accusation anyway.

2. Any “homework” that wasn’t turned in on time by the plaintiffs

Reason(s) the defense gives for excluding it – Lawsuits are carefully choreographed dances with very specific deadlines that must be adhered to.  And this isn’t just because judges don’t like waiting for procrastinators.  The scheduling of deadlines is intended to make things as fair as possible for both sides.  The legal system does NOT appreciate surprises.  Whenever one side brings up something–a complaint, a fact, an opinion, a witness, a piece of evidence, etc.–the other side is given a chance to examine it and potentially challenge it.  When something is introduced at the last second or past a deadline for submission, then the opposing side is not given adequate opportunity to review, analyze, or investigate.  And that’s not fair.  And thus (quoting here from the defense motion):

…a party who fails to make a required initial disclosure (such as disclosing witnesses likely to have information on key topics or producing documents they intend to rely upon at trial) “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial” unless the party’s failure was “substantially justified” or “harmless.”

So here’s what happened.  The discovery period ended on November 2.  That was the cut-off for placing anything else into evidence.  It was, for all intents and purposes, the “speak now or forever hold your peace” point of no return.  The defense followed this rule.  The plaintiffs…well, not so much.

On October 28 (just five days before the “speak now or forever hold your peace” deadline), the plaintiffs surprised the defense team by introducing a whole bunch of new exhibits and information that had never been heard or seen before by the court or the defense team.  This included (among other things):

  • The Star Trek novel Garth of Izar
  • The Star Trek novel Strangers from the Sky
  • The FASA Star Trek Role Playing Game supplement The Four Years War

Two and a half weeks later (after the discovery deadline had passed) the plaintiffs also suddenly declared John Van Citters of CBS licensing to be an expert witness.  Now, in my opinion, John does, in fact, know a LOT about Star Trek.  So do I.  The difference is that the defense told the plaintiffs about me long before November 2.  The defense only found out that John would be an expert witness two weeks after the cut-off.  This did not allow them the opportunity to question him about that alleged “expertise” during deposition…and now it’s too late.  In other words, the defense cannot properly prepare to question John Van Citters on the witness stand during the trial because they haven’t discovered enough about his background as an “expert.”

Likewise, given only a few days until the deadline and because all of the witness depositions had already been held, the defense team couldn’t properly analyze or investigate the two novels and the one supplement during the discovery phase.  “Can’t they just do it now?” you ask?  Yes, but that is still unfair.  Had the defense known about these items of evidence with enough time left in the discovery period, they could have asked the “expert” John Van Citters about them…and possibly gotten valuable information to challenge the relevance or admissibility of these literary works.  Now they can’t.

The law doesn’t like it when the attorneys don’t get a fair shot to examine evidence and question witnesses before trial…and it’s worse if it seems as though one side is playing dirty pool by trying to ignore rules designed to ensure fairness.

Reason(s) it could hurt the defendants’ case – In the same way that the plaintiffs don’t want jurors to know that a dozen or more other quality Star Trek fan films exist (plus a hundred others of lesser quality), the defense doesn’t want the jurors to know that Garth of Izar appeared anywhere other than one episode back in 1969 or that the Four Years War wasn’t an original idea from Alec Peters (even though you can’t legally copyright an idea).  So yes, both sides are trying to hide some “inconvenient” truths from the jury.  The only difference is that the plaintiffs did, in fact, screw up by waiting to spring their surprise until after the deadline.  And it could come back to bite them plaintiffs in the tushy.

As for John Van Citters, well, any expert witness whose paycheck is signed by the plaintiff is very likely not going to be helpful to the defendant.  As such, if the defense can keep John from being called an “expert” and from commenting about how similar Axanar is to Star Trek, well, that takes a valuable piece off the plaintiffs’ side of the chess board.  So it’s definitely worth a try because the plaintiffs’ delays make them vulnerable to the argument.

3. Anything that wasn’t in the original amended complaint filed March 11, 2016…like the FASA Role Playing Game

Reason(s) the defense gives for excluding it – Remember how I just said that November 2 was the “speak now or forever hold your peace” deadline?  Well, actually, it might have been seven months earlier.  Let me ‘splain…

The way copyright law works is that the plaintiff has to tell the defendant exactly what elements of its intellectual property was infringed upon because each violation can carry its own separate penalty (potentially as much as $150,000 per penalty).  Then the defendant has a right to address each alleged violation separately.  In fact, that’s the reason I listed the amended complaint of March 11 and not the date of the original complaint filed on December 29, 2015.  Y’see, the first time CBS and Paramount sued Alec Peters, the complaint was rather sloppily written, just citing “thousands of violations” without specifying what they actually were.  That’s why the amended complaint lists 57 specific violations–like Garth and Soval, the USS Enterprise, the Klingon language, Vulcan pointy ears, and (my personal favorite) the triangular shaped medals on the Starfleet dress uniforms.

So, armed with those 57 specific alleged violations, the defense now had something definite to shoot at.  And so they went about defending themselves against those specific 57 violations.  They went through discovery and deposed witnesses specifically in order to respond to those 57 alleged violations.  Then, a month after the defense deposed the two main witnesses who were explaining precisely what Axanar copied (and how)–and just five days before the deadline for the entire discovery period–the plaintiffs suddenly inject this new claim of The Four Years War from the FASA Role Playing Game Supplement.  That’s legally a “no-no.”  A plaintiff can’t suddenly add a 58th violation at the last minute.  Only things that were in the complaint itself count.  Otherwise, the defendant isn’t being given a fair chance to form his defense (instead of 7 months, he has just 5 days).

Now, I realize that some of the detractors will bring up something that Janet Gershen-Siegel said on her Semantic Shenanigans blog (which is excellent, but the way, and you should check it out if you get the chance).  When analyzing motion #3 (this one I’m talking about now), Janet cites the following sentence from the Amended Complaint:

The copied copyrighted Star Trek elements include, but are not limited to, those listed below…

Janet then makes the following observation: “And I have no doubt that defense knew this meant the list was not to be considered all-inclusive.”

I’m sure they did, but the law is still very specific and does not allow for “…and the rest” the same way the opening theme song for Gilligan’s Island did.   You have to specifically say, “…the Professor and Mary Ann.”  The “to be determined” nature of the plaintiff’s “but are not limited to…” clause goes against both the spirit and the letter of the law, as I’ve just explained.  The defense must be given the full list of violations from the get-go and not have surprises sprung at the last minute.

Reason(s) it could hurt the defendants’ case – Since this motion targets most of the same items as Motion #2 (with the exception of John Van Citters himself), the potential damage to the defense’s case is essentially the same as I described above.  Consider this the “back up” motion…just in case the judge doesn’t grant all or any of Motion #2.  This is just an attempt to get him to take a second look because it’s a REALLY important legal point that one side can’t spring something unexpected on the other side at the last minute.

4. Triangles

Reason(s) the defense gives for excluding it – Okay, this one isn’t just about triangles.  More specifically, the defense doesn’t want the plaintiffs to introduce elements that are in Star Trek but are NOT protectable by copyright.  These items include:

  • costumes
  • geometric shapes
  • words and short phrases
  • ideas
  • scènes à faire (scenes that are typical to a genre, like space battles in sci-fi space epics)
  • unprotected characters
  • elements of works derived from nature, the public domain, or third parties.

In short, the defense is trying (yet again!) to get the judge to throw out many (most, really) of those 57 alleged violations.  After all, if the jury is told that Alec Peters violated 57 different copyrights, it’s gonna sound really, REALLY bad and be rather prejudicial against the defendant.  But if the jury is told they have to determine whether or not he violated just 6 or 7 copyrights, well, that doesn’t sound nearly as bad now, does it?

I can already hear some of the detractors typing that I’m wrong because the plaintiffs aren’t saying that Alec Peters copied triangles or pointed ears specifically but rather the overall look of Starfleet dress uniforms and the amalgam of Vulcan attributes, which includes pointed ears but also includes a whole bunch of other elements.  Well, again, that’s not how copyright law works.  Remember the “Stairway to Heaven” infringement case that ended recently (and, coincidentally, was also argued in Judge Klausner’s courtroom)?  The jury wasn’t asked to compare all of Led Zeppelin’s “Stairway to Heaven” to all of Spirit’s “Taurus.”  It was just comparing those two opening riffs…

In the same way, the plaintiffs are required to argue for specific instances of infringement of copyrightable elements.  So, for example, if someone used Captain Kirk (who is a registered copyrighted character), that’s fine.  It’s a valid alleged violation.  But if Captain Kirk is wearing his dress uniform, you don’t get to pile on top of using Kirk the fact that the infringer also used a Starfleet dress uniform with triangular medals.  That gets included with the one Kirk violation.

So in Axanar, the dress uniforms weren’t worn by Captain Kirk (a copyrighted character).  Instead, they were worn by two original characters (Admiral Ramirez and Admiral Travis).  Those characters aren’t copyrighted by the studios (since they’re original), so that leaves the plaintiff suing over just the uniforms and the triangular medals.  But as the defense states in their motion…

Under the “useful article” doctrine, clothing cannot be copyrighted except to the extent there are original designs on the clothing that can be separated from the function of the clothing, which is not alleged here…


The U.S. Copyright Office refuses to base copyright registration on simple and “standard ornamentation,” such as “chevron stripes,” “a plain, ordinary cross, “common geometric figures or shapes, or “a standard symbol such as an arrow or a five-pointed star.”

So I’m guessing you can see where the defense is going here.  They’ve got a perfectly good reason for getting the judge to toss out things like the logos for the UFP and Klingons along with words and phrases like Andorians, Tellarites, Romulans, Axanar, Archanis IV, Q’onoS, Nausicaa, Rigel, Andoria, Tellar Prime, Vulcans, Klingons, Terra (land), Starship Enterprise, Starfleet, Federation, Starships, Stardate, and Federation or the short phrase “beaming up” (none of which is copyrightable as a word or phrase).  They also want the judge to toss out the Klingon language as a violation because it’s an “idea or system” (in this case, a system of communication), which is not copyrightable.  And of course, as I discussed in a previous blog, the characters of Soval and Garth of Izar aren’t registered and may not even qualify as protectable.

Now, I’ll be the first to admit that this one is a bit of a “Hail Mary” pass.  As Janet Gershen-Siegel says on her blog, the question of whether or not all of these 57 elements are even protectable in the first place is really a matter for the jury to decide, not the judge.  Yes, Judge Klausner could throw out some or most of these alleged violations on the purely legal grounds listed by the defense.  But that’s taking a lot of the decision-making responsibility in this case onto his own shoulders…and judges are often reluctant to do that.  Juries are supposed to be the “triers of fact,” not the judge (except in extreme cases of the juries getting a verdict completely wrong…and even then, it’s often left to an appeal).  But for the judge to rule on something like this before the jury ever gets it, well, as I said, it’s a bit of a “Hail Mary.”

Reason(s) it could hurt the defendants’ case – This isn’t so much a case of the alleged violations hurting the defense.  It’s more that if these dozens of allegations are thrown out before the case begins and are recluded from being mentioned, it just makes the job of the defense team a heck of a lot easier!  It would also limit the potential damages if Alec Peters loses because the verdict award is based on a certain penalty amount per violation.  The fewer violations, the lower the total.

Okay, let’s pause there…’cause I’ve still got FIVE MORE motions to get through!  Yep, the defense team wrote a LOT!

Next time, we’ll finish up the rest of the in limine motions, including everyone’s favorite: “You can’t actually say the words “Star Trek” in this case!”  Let’s see how the defense tries to justify THAT!

15 thoughts on “A closer look at the MOTIONS TO LIMIT EVIDENCE in the AXANAR LAWSUIT (Part 3)”

  1. I was surprised to hear that Judge Klausner cancelled the oral arguments about all this ‘tainted’ evidence and witness/testimony they both hope to exclude from trial.

    I certainly see why they wanted it excluded (both sides) and though the official reasons were similar, I,as a long time Star Trek fan and having read every document you posted links to, can read between the lines. Their ‘real’ reasons were quite different or so it seems. I’m not sure how a judge could weasel out the real truth why each side wants their exclusions upheld without the oral arguments.

    My guess, and it’s entirely a guess, is that he will likely not exclude much from trial unless they clearly relate to rules of procedure alone which he doesn’t need explained to him by the attorneys.

    I’m kinda curious how close I get to what the judge rules.

    1. Klausner canceled orals for motions for summary judgement, not for excluding evidence, IDIC. The latter motions don’t have any oral arguments scheduled, and Klausner usually cancels oral arguments for summary judgements.

      As for you guesses, I think most of them are quite likely.

      1. Yep, you’re right of course. It was for summary judgement. Guess my age is getting in the way of my thought processes these days. Kinda sux to tell ya the truth… lol.

        I am somewhat surprised that ‘motions to exclude’ would not have an oral argument component with it since what is and what is not relevant does seem to be of critical importance in a trial. I guess that’s why I’m not a lawyer. (Not to mention that these days, I’d probably forget where the courthouse was located… lol)

  2. A short question about #3, since I’m neither a lawyer nor from the USA, do you have, like in criminal law, one shot for every infringement or can you sue multiple times. If you could sue multiple times maybe the plaintiffs wouldn’t be so upset if the RPG and novel(s) are not part of this case, because they could just file another one, effectively preventing Alec from making Axanar for many years.

    My guts tell me you have one shot, for the very reason I stated above because it would be unfair for the defendant, but since it’s law you never know.

    1. My legal eagles are gone this week, so I’m flying solo (just like Chewbacca). That said, I did find this helpful piece if info on the LexisNexis website:

      “The principle of res judicata (Latin for “a thing adjudicated”) bars a party from filing a new lawsuit if that party has filed a prior suit on the same claim or on claims arising from the same transactions that could have been raised in that prior suit. The Supreme Court has acknowledged the important reasons for this doctrine, which include (1) preventing the cost and vexation of multiple lawsuits, (2) conserving judicial resources, and (3) preventing inconsistent judicial decisions so parties can rely on adjudications.

      See more at: https://www.lexisnexis.com/legalnewsroom/corporate/b/business/archive/2013/04/08/res-judicata-double-jeopardy-s-civil-lawsuit-cousin.aspx?Redirected=true#sthash.hrGmA4Az.dpuf

  3. Jonathan,

    If, say, your ‘expert’ testimony were excluded but for whatever reason Van Citters’ is allowed, then during trial could any attorney from either side walk up to Van Citters and ask:

    “Are you aware of the fan film Star Trek: Continues (STC)?” (only a Y/N response allowed)
    “Are you aware STC collected more than $500k in crowdfunding?” (Y/N only)
    “Are you aware STC also used these same potentially infringing items as ‘Axanar?’ ” (list specific infringing issues that are on the amended Axanar complaint) (Y/N only)
    “Are you aware STC released its fan film for free and did not make a profit?” (Y/N)
    (Continue for remaining items on your list that are pertinent to this case to establish Alec really thought he wasn’t willfully infringing.)

    Repeat the above for every fan film on your list.

    Is the above a way to get your list entered into the proceedings? Or would that have to be excluded because the judge threw out your list and these questions weren’t asked of Van Citters during discovery?

    1. Well, if the plaintiffs’ motion #6 (TO EXCLUDE TESTIMONY AND DOCUMENTS REGARDING STAR TREK FAN FILMS) is granted, then no, the W&S attorneys would not be allowed to ask JVC or anyone else about any fan film other than Axanar.

  4. I’d love to say that ‘you people are deluded’ but I’ll let the state do its thing to Alec next month.

      1. Well, the federal government is a state — a federation composed of member states, [the US] altogether being a federal state. Likewise, in Europe, you have individual states (like Germany or France) who are member states in a confederation (the European Union, which is kind of actually somewhere between a confederation and a federation in the most recent decades), and that confederation is a state of its own, albeit, a weak one (due to it having a lot of confederation traits despite some of its few federation traits). The distinction might not matter for your average Joe Schmoe, Otto Normalverbraucher, or Monsieur Tout-le-monde, but when you get into the legal aspects, it starts to matter. Speaking of distinctions that get a bit muddied: while “State” refers to the governmental entity, “Nation” refers to the People who are grouped/united by some aspect (such as being under a State, within a Country, or having common heritage), and “Country” refers to the defined Land possessed/controlled by the State and/or Nation/People.

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