And so we come to the fourth and final part of this blog series. (Time sure flies when you’re writing 2,000 words a day!) Here are links to Part 1, Part 2, and Part 3. If you haven’t read them yet, to quote Pavel Chekov, “Now vould be a good time.”
It’s probably pretty darn busy right now at CBS and Paramount. What are been asked for (or rather, ordered) by the judge will most likely require all hands on deck for much of the week–tracking down documents and e-mails and financial records, compiling them, composing careful answers to submitted inquires from the defense, and creating a full privilege log. Plaintiff’s Attorney Jonathan Zavin said as much in court last Friday toward the beginning of his presentation (I’ll post the court transcript when I receive a copy) and even called the amount of documentation requested “unduly burdensome” 25 different times in the plaintiff’s responses in the Joint Stipulation document.
Before we jump back into the legal battle of Axanar, I strongly recommend you read Part 1 and Part 2 of this blog analysis if you haven’t already. There’s a LOT that happened last week involving the Axanar copyright infringement lawsuit, including a 2-hour long court hearing and a ruling by Magistrate Judge Charles Eick of the Federal 9th Circuit Central District.
The judge’s ruling gave the defense (Axanar) nearly everything it wanted from the plaintiffs (CBS and Paramount) that the studios were refusing to turn over during the discovery phase. Discovery is when both sides in a lawsuit get to ask the other side to show them all the cards in their hand (or, in this case, documents, e-mails, and answers to questions during witness depositions). The idea is that neither the plaintiff nor the defense should be bringing out some surprise piece of evidence during trial that the other side never saw coming. Yeah, I know it happens all the time on TV, but it’s not supposed to. Both plaintiffs and defense should be allowed to prepare full arguments based on all the evidence that will be presented in court. If one side doesn’t see the evidence, how can they put together a proper rebuttal?
If you haven’t read Part 1 yet, go read it now. Then come back.
Welcome back. Shall we begin…?
When last we left off, the focus was on J.J. Abrams and Justin Lin and their public comments about Axanar. The studios have now been ordered in a ruling by Magistrate Judge Charles Eick to turn over:
All Documents and Communications relating to the statements made by J.J. Abrams on or about May 19, 2016 that (a) Justin Lin was “outraged” by this lawsuit; (b) this lawsuit “was not an appropriate way to deal with the fans”; (c) “fans should be celebrating this thing”; (d) “[f]ans of Star Trek are part of this world”; (e) Justin Lin “went to the studio and pushed them to stop this lawsuit”; (f) “within the next few weeks, it will be announced this is going away”; and (g) “fans would be able to continue working on their project.”
And Atlas shrugged. Many of the Axanar detractors, and indeed, even the plaintiffs and their attorneys have said, “So what?” These two men aren’t spokesmen for the studios. They were hired out as directors, and therefore, any opinions they might have are hardly relevant to the case. Who cares what they both said in their e-mails to the studios about Axanar? We already know what they think anyway!
Okay, so everyone is talking about, cheering about, cursing about, and analyzing Friday’s ruling by Magistrate Judge Charles Eick after the hearing to determine Axanar‘s motion to compel discovery from the studios.
Rather than summarize exactly what just happened, I am going to humbly direct you to the blog website of my delightful counterpart over on the other side of the Internet fence, Janet Gershen-Siegel. Unlike me, the Boston-based Janet actually went to law school, graduated, and practiced insurance defense law for a few years back in the 1990s. She’s been analyzing and writing about the Axanar lawsuit in painstaking detail almost since it was filed. And while we all have our little biases (yes, even me!), Janet’s meticulous reviews are sprinkled with a generous helping of comedic flairs to be very accessible for the lay-person. And when I say I do my research before writing these blogs, hers is one of my never-miss sources of information and insight.
So instead of reinventing the wheel, I’m going to send those of you who are curious over there to Janet’s blog to read more about what the judge actually ordered the studios to do…and then come back here for the follow-up. What I’m going to talk about is how the defense is planning to use all of this newfound “bounty” (an amazing amount of new discovery documentation and verbal/written answers to defense questions ordered by the court) to try to win their case…or at worst, not lose too badly.
I don’t usually get breaking news as it happens, but Judge Magistrate Charles Eick just ruled on the Axanar defense team’s motion to have the court compel discovery (force the studios to deliver documents they were refusing to produce for the defense to look over before trial).
I was in court myself observing this morning, and I hadn’t expected the judge to rule so quickly. But Judge Eick understood that, with only 12 days left until the close of the discovery period, the clock was ticking.
His ruling JUST came out, and I don’t even have the full text yet. All I have is this summary:
On or before October 28, 2016, Plaintiffs shall…
serve supplemental responses without objection, and produce all documents responsive to, the following requests (except documents withheld under claim of attorney-client privilege): 14, 35, 36, 37 (limited to the works allegedly infringed and also limited to documents (which may be summary documents) sufficient to show revenues and profitability), 17 (limited to 2009 to the present), 18 (limited to 2009 to the present), 21, 25 and 29;
serve supplemental answers without objection to Interrogatories Nos. 8 and 9
produce for deposition a witness or witnesses prepared to testify as to Deposition Testimony Subject No. 28;
serve a privilege log identifying with particularity all documents withheld under claim of attorney- client privilege; and
to the extent not otherwise ordered herein, fulfill all discovery-related promises previously made by Plaintiffs to Defendants.
In short, Axanar got pretty much everything they wanted and the studios are going to have a VERY busy week ahead.
Now, I’m going to need a couple of days to parse this all out and translate it from legalese into lay-person’s English. So please be patient. (During that time, I’ve also Jayden’s karate class, soccer practice, a friend’s birthday, a soccer game, and a birthday party for one of Jayden’s classmates. And so this is why I don’t blog professionally.)
But short summary: big win for Axanar during the discovery phase. The actual trial is completely separate, but for right now, the defense is going to have a very happy weekend.
Yesterday, we began discussing the two documents filed by the opposing parties in the Axanar copyright infringement lawsuit last Friday. (There’s actually three documents, but more on that later.)
Both of the new documents are significantly shorter than the 60-page Joint Stipulationdocument from the previous week that argued for and against the court to compel the studios to produce a boatload of documentation related tot he case.
Did you hear the fireworks last Friday afternoon? If you were in the Central District Federal Courthouse of the 9th Circuit, you might have!
As expected, both the Axanar defense team at Winston & Strawn and the CBS/Paramount legal team at Loeb & Loeb filed their brief supplements to their recent 60-page Joint Stipulationdocument to compel discovery that was filed on September 29th. The deadline for adding anything to the original filing was the end of business last Friday, and things came right down to the wire!
Y’see, both sides wanted to get the last word in, so each waited as long as possible to file their supplemental memorandum. But in the end, Winston & Strawn waited just a teensy bit longer and managed to adjust their filing slightly to address a couple of the points that the plaintiffs included in their supplement.
I’m going to save some time and instead of summarizing Part 1, I recommend you read it, if you haven’t already. You can also link to the 60-page Joint Stipulationdocument that contains both Axanar‘s Motion to Compel the studios to deliver the remainder of the documentation they initially asked for, and also the studios’ responses to those requests.
When last we left off, we were up to the third category of documentation requested by the defense (and not fully provided by the plaintiff)…
It’s “High Noon” in the Axanar lawsuit…and we haven’t even gotten to trial yet! But that ominous background music is playing, and the two gunfighters are facing off for a showdown in the middle of a dusty street in a western town. More specifically, the CBS and Paramount lawyers at Loeb & Loeb are facing down the Axanar lawyers at Winston & Strawn (and vice-versa!), and the entire case could be won or lost right now by either side–months before trial even begins–and both teams of lawyers know it!
Perhaps the second most problematic aspect of Axanar (after the lawsuit) is the fulfillment of perks (or lack thereof) to the backers of their three crowd-funding campaigns. Two years after their second Kickstarter, which raised a jaw-dropping $638,000 from supporters, perks have still not gone out to donors. Fortunately, that is about to change with the final completion of the back-end Ares Digital 2.0 accouont management system.
But before we discuss how Axanar is finally pulling itself OUT of this sand pit, let’s take a look at how Axanar fell INTO this sand pit in the first place…