Axanar Defense Motions in Limine

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree.

Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title.

She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need.

She can always be bribed with pie.

Axanar Defense Motions in Limine

I have the Axanar Defense Motions in Limine.

Semantic Shenanigans - Axanar Defense Motions in Limine

As I have stated before, these documents are lengthy and numerous. I will try to keep my analyses brief.

As always, I have paid for these documents; they are a matter of public record. All members of the public (e. g. you and me) have the right to know. Furthermore, if I miss anything or go over it too quickly for your liking, please feel free to send me a note at the Contact page and I will try to answer you soonish.

However, in case you didn’t read the last blog post: what the hell is a Motion in Limine, anyway? Basically, a motion in limine is an attempt by one side to exclude evidence from trial.

Because there are a several of these, I’ve already handled plaintiffs’ so now we are onto defense’s motions. Many of the same supporting case law shows up from motion to motion. Hence we will instead look at what the motions have targeted for exclusion. Furthermore, many of them come with proposed orders, which the judge can accept, reject, or alter. Unless anyone really wants to see any of those, for the sake of brevity I won’t include them.

Defense Application for Leave to File Document under Seal

Axanar Defense Motions – Application for Leave to File Document Under Seal

First of all, this application seeks to file the following under seal:

  • Excerpts from the September 30, 2016 deposition of Daniel O’Rourke
  • and Excerpts from the October 28, 2016 deposition of Terry McIntosh
  • Excerpts from the October 19, 2016 deposition of Alec Peters

The reason as given was:

… Defendants’ Motion in limine No. 5 and No. 7 cite to documents
and testimony that has been previously filed under seal, as they all discuss highly
sensitive and confidential topics, including Defendants’ financial information and
expenditures associated with the creation of the Axanar Works, and Defendants’
confidential business plans.

While these documents may go under seal now, I suspect that, if this matter heads to trial, some will end up revealed anyway. Because business plans in particular would go to the question of willful infringement. Hence it becomes, properly, a question for the trier of fact (the jury).

Defense Motion In Limine to Preclude #1

Axanar Defense Motions – Motion in Limine #1

And then this motion seeks to preclude evidence concerning discovery violations. And this one seems to favor defense, for they are correct that they were never sanctioned for defendant Peters and witness Burnett not producing certain documents.

Defense Motion In Limine to Preclude #2

Axanar Defense Motions – Motion in Limine #2

In addition, this motion seeks to preclude evidence not disclosed in a timely fashion under the court’s scheduling order. However, this motion makes nearly the opposite argument as the one made for motion #1. Because in motion #1, their client didn’t produce documents at all. And in motion #2, they seek to exclude documents provided (according to defense) late. However, just as there are no sanctions referenced in motion #1, there are none in motion #2. Or to put it in laymen’s terms, this is an attempt to have one’s cake and eat it, too.

Defense Motion In Limine to Preclude #3

Axanar Defense Motions – Motion in Limine #3

Furthermore, this motion seeks to preclude introducing evidence about infringed works not identified in the first amended complaint. However, that’s not what the Axanar Amended Complaint says. Rather, on page 11, it states:

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

And I have no doubt that defense knew this meant the list was not to be considered all-inclusive.

Defense Motion In Limine to Preclude #4

Axanar Defense Motions – Motion in Limine #4

And then this motion seeks to preclude plaintiffs from “relying on evidence regarding items that are unoriginal, in the public domain, or from third parties”. However, aren’t unoriginal elements kind of the point of the case? Actually, defense means geometric shapes, scènes à faire (scènes à faire are the kinds of scenes we expect in a genre, such as a kiss in a romance or a gunfight in a western. They cannot be copyrighted), etc. Except what they claim to be scènes à faire, etc. are really questions of fact, more proper for a jury to decide. Hence I doubt this one will be granted, at least not in full.

Defense Motion In Limine to Preclude #5

Axanar Defense Motions – Motion in Limine #5

In addition, this motion seeks to preclude plaintiffs from “relying on evidence concerning personal drama, smear campaign, and other irrelevant communications, including witnesses Christian Gossett [and] Terry McIntosh.”

Yes, it really says that.

What’s the test for this kind of information?

Now, the question is whether the probative value of the evidence is outweighed by any prejudice to defendants. And the bottom line is that there are just some things which Gossett and McIntosh in particular are the best if not only witnesses to. Furthermore, witnesses and parties aren’t required to like each other. And not liking someone does not necessarily, by definition, lead to perjury or irrelevance.

In addition, on page 8, defense wants plaintiffs to not be able to introduce evidence of the former relationship between defendant Peters and Ms. Kingsbury. While I agree that their love lives are not relevant, this may come out all the same. For one thing, on the Axanar ‘Annual Report‘, Ms. Kingsbury’s salary is listed as being ‘deferred’. Yet she will (I suspect) be asked about the hours she put into the project. And then she may be asked why she was putting in so many hours without compensation when she apparently did not have a regular day job. Because the answer may very well center around her former relationship with defendant Peters, this may come out anyway.

Defense Motion In Limine to Preclude #6

Axanar Defense Motions – Motion in Limine #6

Furthermore, this motion seeks to preclude plaintiffs from “referring to irrelevant superseded scripts.”

I doubt this one will fly, simply because the extant script from the time the lawsuit was filed is the one that matters.

Defense Motion In Limine to Preclude #7

Axanar Defense Motions – Motion in Limine #7

And then this motion seeks to preclude “introduction or mention of certain of defendants’ financial information and inaccurate reference to ‘profits’ defendants allegedly earned.”

Once again, I have my doubts on this one succeeding, seeing as the showing of personal benefit is what plaintiffs are suing about. Defense says (page 6):

Defendants do not object to Plaintiffs introducing the amount of money
Defendants raised through their crowdfunding campaign. But how Defendants
allegedly spent that money—especially when Plaintiffs’ lawsuit halted the production
of the feature film—has absolutely no relevance to the issue of whether Defendants
infringed Plaintiffs’ copyrights, or any other related issues.

Except personal benefit cuts to the heart of this case, and so does willful infringement, both of which could be neatly shown with information on a diversion of funds to personal expenditures and/or to the creation of a fledgling future business.

Defense Motion In Limine to Exclude #1

Axanar Defense Motions – Motion in Limine to Exclude #1

Furthermore, this motion seeks to exclude “the use of the ‘Star Trek’ name.”

Say what?

While defense tries to claim the name would solely refer to trademark infringements (which are not at issue herein), I hate to break it to ’em, but all of those pictures of Klingons, Constitution class starships, delta shields, and Vulcans (not space elves! Sheesh) will kinda tip off the jury anyway.

Defense Motion In Limine to Preclude #8

Axanar Defense Motions – Motion in Limine #8

In addition, this motion seeks to preclude plaintiffs from “referencing the quality of defendants’ works.”

After all of the touting of how ooh-aah awesome Prelude was supposed to be, now defense suddenly wants the plaintiffs to shaddap about that.

Except quality could go to brand confusion, an element in damages. Sorry, defense, but I don’t think this one’s going to go your way.

Declaration by Defense Attorney Diana Hughes Leiden

Axanar Defense Motions – Declaration by Attorney Diana Hughes Leiden

So this defense counsel declaration works as a vehicle for exhibits like most such declarations do.

Exhibit #1

So this exhibit consists of the April 21, 2016 defense request for production directed to Paramount. This matter was covered on the G & T Show blog and I won’t duplicate my efforts here.

Exhibit #2

And then this exhibit consists of the same RFP as in Exhibit 1 except it was directed to CBS.

Exhibit #3

Furthermore, this exhibit consists of plaintiffs’ Plaintiffs’ Rule 26 Initial Disclosures. The main points of interest surround the witness list for depositions. These include names such as defendant Peters, Mr. Burnett, Mr. McIntosh, and Ms. Kingsbury.

Exhibit #4

In addition, this exhibit consists of Defense’s Responses to Plaintiffs’ First Set of Requests for Production of Documents. And defense objected to pretty much everything, claiming either irrelevance, vagueness, or that a request was overly broad and/or burdensome.

Exhibit #5

Finally, this exhibit consists of a Portion of the Videotaped Deposition of Bill Hunt. Mainly, this excerpt refers to multiple versions of the script.

Request for Judicial Notice

Defense Request for Judicial Notice

And then this request attempts to “preclude plaintiffs from relying on evidence regarding items that are unoriginal, in the public domain, or from third parties.” So this parallels the Motion in Limine #4. Nearly all of the following exhibits have come up before, on April 5, 2016 in a (you guessed it) Defense Request for Judicial Notice. Hence I won’t comment much. However, I will point out that references to Wikipedia are often discounted because that site can be so readily altered, and dictionary definitions can differ among dictionaries and one treatment is not necessarily definitive.

Exhibit #A

So Exhibit A consists of a page about the meaning of the name Soval from a site called Kidpaw.

Exhibit #B

And then Exhibit B consists of the Wikipedia entry on the name Garth.

Exhibit #C

Furthermore, Exhibit C consists of the Wikipedia entry on Epsilon Bootis.

Exhibit #D

In addition, Exhibit D consists of a Nosferatu screenshot.

Nosferatu, who looks exactly like a Vulcan. If you're on crack.

Nosferatu, who looks exactly like a Vulcan. If you’re on crack.

Exhibit #E

Finally, Exhibit E consists of the Merriam-Webster dictionary definition of the word elf. ‘Tis the season, and all that.

Exhibit #F

So Exhibit F consists of Merriam-Webster dictionary definition of the word Vulcan.

Exhibit #G

And then Exhibit G consists of a discussion about triangular medals.

Exhibit #H

Furthermore, Exhibit H consists of an excerpt from the Odyssey of Homer.

Exhibit #I

In addition, Exhibit I consists of Merriam-Webster dictionary definition of the word Rigel.

Exhibit #J

Finally, Exhibit J consists of Merriam-Webster dictionary definition of the word Terra.

Exhibit #K

So Exhibit K consists of a comparison between the flag of the United Federation of Planets and the UN flag.

Exhibit K, UFP flag

Exhibit K, UFP flag

Exhibit K, UN flag

Exhibit K, UN flag

While there are clear stylistic similarities (and color), that’s not the only UFP flag ever used in the series. However, I’m sure expert super fans would know this without my having to so much as mention it.

Red UFP flag

UFP flag from TOS episode, “And the Children Shall Lead”, image is courtesy of TrekCore

Exhibit #L

And then Exhibit L consists of Merriam-Webster dictionary definition of the word teleportation.

Exhibit #M

Furthermore, Exhibit M consists of a copy of Sten Odenwald’s article, Who Invented Faster Than Light Travel?

Exhibit #N

In addition, Exhibit N consists of Merriam-Webster dictionary definition of the word federation.

Exhibit #O

And next, Exhibit O consists of a copy of an excerpt from H.G. Wells, The War of the Worlds.

Exhibit #P

So Exhibit P consists of Merriam-Webster dictionary definition of the word bridge.

Exhibit #Q

And then Exhibit Q consists of the Wikipedia entry on “Whom the Gods Destroy” (Star Trek: The Original Series).

Exhibit #R

Furthermore, Exhibit R consists of a Wikipedia entry on “Whom the Gods would Destroy”.

Exhibit #S

In addition, Exhibit S consists of a Wikipedia entry on “The System of Doctor Tarr and Professor Fether”. This story by Edgar Allan Poe tells of a lunatic asylum. Tellingly, even the Wikipedia entry doesn’t list any Star Trek episodes as having been influenced by it.

Exhibit #T

Finally, Exhibit T consists of a copy of “Is ‘those whom the gods wish to destroy they first make mad’ a classical quotation?,” via the blog of Roger Pearse. #SpoilerAlert: Pearse traces the expression back to the 17th Century.

Motion-Related Document

Defense Motion-Related Document

Finally, this document is just a proposed order referencing all of the motions, supra.

What’s Next?

We will undoubtedly see responses and then, eventually, the judge’s decisions. Because of the rapidly approaching holidays, we may see preliminary decisions before the end of the year and then longer documents after the first of January. However, we shall see, so please stay tuned.Thank you, as always, for your kind support. And if I don’t see you before then, happy holidays! 🙂

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree. Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title. She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need. She can always be bribed with pie.

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