Axanar Plaintiffs’ Ex Parte Application for Order

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 Plaintiffs’ Ex Parte Application for Order

Semantic Shenanigans Axanar Plaintiffs' Ex Parte Application for Order

What is an Ex Parte Application for an Order? And why does it matter in the Axanar case?

So we start with the first of an anticipated three blog posts about this most recent discovery development.

Ever since the Defense Motion to Compel Discovery, and since the schedule for Axanar came down, the case has been coming to a head. And this flurry of documents makes total sense; the parties have a strict deadline. However, an extension can still happen. And it just might.

I’ve covered this case more on the G & T Show’s Fan Dance blog. And I blog about these (in case you haven’t read any of the earlier posts) in a more or less uniform manner, page by page. In addition, these documents are a matter of public record and I have paid for them. And you have the right to know!

And if you have any questions, please feel free to ask and I’ll do my best to answer you. I am a retired attorney.

So to get everyone up to speed (in case you’re coming in late-ish), defendant Peters was produced for deposition recently, as were Christian Gossett, Robert Meyer Burnett, and Terry McIntosh. And the document gives a bit of insight into what happened (and what didn’t happen). Because we can’t see everything happening behind the scenes in this lawsuit. Often, these documents provide a keyhole view of the proceedings. So let’s take a peek.

Page 7

Continuing from the prior page, plaintiffs state:

Counsel for Mr. Peters and Mr. Burnett has justified their failure to produce these
documents on the basis that these postings (to the extent they still exist) are “publicly available.”

As I recall, the defense requested similar documents. And of course those are also publicly available. Because the Internet doesn’t care who’s suing whom. Everyone’s postings exist out there.

Then the counsel for plaintiffs adds:

Second, the only document Mr. Peters has turned over relating to the expenditure of the $1.4 million he raised from Star Trek fans to create Star Trek: Axanar is a financial summary prepared by his accountant. Mr. Peters has marked that document as “Highly Confidential” – restricting its use in this lawsuit to counsel for the parties.

This document shows the amounts and dates on which Mr. Peters paid himself and his colleagues, and paid for his personal expenses with funds from Star Trek fans. There is no competitively-sensitive reason for this document to be marked as “Attorneys-Eyes Only” or “Highly Confidential,” and Mr. Peters has not been able to offer an explanation as to why it had been so designated.

And more

On October 3, 2016, shortly after this document was produced, Plaintiffs sent a meet and confer letter to Defendants’ counsel asking that this document be de-designated. Defendants’ counsel did not respond. At the deposition of Alec Peters last week, Plaintiffs’ counsel again requested that this document be de-designated and, this week, Plaintiffs’ counsel continued to meet and confer requesting the de-designation of this document.

Plaintiffs request that the Court order the de-designation of this document, as it is not a trade secret and does not otherwise contain competitively-sensitive information. The only basis offered by Defendants’ counsel for the failure to de-designate this document is that is that the material in that document may embarrass Mr. Peters by showing the ways in which he spent funds that were raised from Star Trek fans. This is not a proper basis for designating a document as Highly Confidential and Plaintiffs request that the Court order this document de-designated.

What?

Essentially they said, just stamping ‘Highly Confidential’ on something does not suffice. A reason must exist for same. And the reasoning generally has to fall under certain parameters, such as trade secrets. Plaintiffs want to have this document de-designated (e. g. take the stamp off, more or less) and allowed in with no such restrictions. Because the current restrictions keep it from being a part of the deposition questioning. And, if the matter goes that far, the designation keeps it out of a jury deliberation room.

Aha, I hear you saying.

And again we have two interesting bits:

  1. This document shows the amounts and dates on which Mr. Peters paid himself and his colleagues, and paid for his personal expenses with funds from Star Trek fans.” and 
  2. The only basis offered by Defendants’ counsel for the failure to de-designate this document is that is that the material in that document may embarrass Mr. Peters by showing the ways in which he spent funds that were raised from Star Trek fans.”

Some of the previous documents filed with the court referred to defendant Peters using funds for expenses such as tires. It’s hard to see where he could be further embarrassed. Or can he? Either way, though, a ‘Highly Confidential’ designation should not come about because the contents of a document might prove disconcerting.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 7

Page 8

And then on the following page, plaintiffs discuss the privilege log. Most noteworthy, plaintiffs state:

… the documents that Mr. Gossett produced (which Mr. Peters did not produce) show that Mr. Peters had counsel in connection with his work on the Axanar project, and asked that counsel to create legal documents and agreements relating to Axanar. Moreover, Mr. Peters himself has confirmed that he engaged counsel to assist him with his Axanar project. Defendants’ prior representations regarding Mr. Peters’ lack of any communications with counsel were not accurate.

Hence, reading between the lines here, basically we have defense counsel saying one thing, but independent (e. g. not a party; I am not using the term as a synonym for ‘unbiased’ as I suspect Mr. Gossett has his own strong feelings about the matter) witness Gossett says something else.

The document then gets into a timeline of discovery, a lot of which I have already written about so I won’t repeat myself.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 8

Page 9

And then on this page, plaintiffs clarify that the financial summary covers a ledger showing how crowdfunding monies were spent. Plaintiffs add:

In August, Plaintiffs noticed the depositions of Robert Meyer Burnett (the director of Star Trek: Axanar), Diana Kingsbury (Alec Peters’ former girlfriend and a member of the Axanar production team) and Bill Hunt (the co-writer of Star Trek: Axanar). Grossman Decl., At Defendants’ request, these depositions were re-scheduled to mid-October. Alec Peters’ deposition was scheduled for October 19, 2016 and Christian Gossett, a third party, and the director of the twenty-minute film, Star Trek: Prelude to Axanar, was scheduled for Saturday October 22, 2016 (due to his work schedule).

Hence we have some more information on who was scheduled for the hot seat. For it was not just defendant Peters and Mr. Burnett (and Mr. Gossett), but also Ms. Kingsbury and Mr. Hunt. However, we don’t have a lot of information on the latter two persons’ depositions.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 9

Page 10

So this page references plaintiffs’ October 3, 2016 letter. Essentially, plaintiff sought the following:

  1. All communications with third parties regarding the Axanar Works
  2. All communications with Robert Meyer Burnett regarding the Axanar Works
  3. and all communications with Diana Kingsbury regarding the Axanar Works
  4. All communications with Terry McIntosh regarding the Axanar Works (another deponent)
  5. and all communications with Alexander Bornstein regarding the Axanar Works
  6. All communications with Bing Bailey regarding the Axanar Works
  7. All communications with Bill Hunt regarding the Axanar Works
  8. and all communications with Mike Spatola regarding the Axanar Works
  9. All communications with Frank Serafine regarding the Axanar Works
  10. All communications with Adam Howard regarding the Axanar Works
  11. and to have the ledger itself de-designated.
Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 10

Page 11

So according to this page, defense counsel never answered the abovementioned letter.

And then the page gets into questions about the ledger and information about expenditures. Plaintiffs requested that defendant Peters de-designate the ledger which showed expenditures he made from his crowdfunding campaigns.

Notably, for Mr. Peters’ first crowdfunding campaign, relating to the twenty-minute film, Star Trek: Prelude to Axanar, Mr. Peters distributed an “annual report” to donors in which he disclosed the expenditures relating to the approximately $100,000 that was raised for that film.

This document, however, was not provided in this litigation by Mr. Peters. Plaintiffs, instead, obtained it and produced it to Defendants. In this report relating to the funds spent by Mr. Peters on Star Trek: Prelude to Axanar, Mr. Peters stated that “The Axanar Annual Report is the financial review document of Axanar Productions. One thing we at Axanar pride ourselves on is being the most transparent and accountable crowd-funded film out there.”

Emphasis theirs.

Why Should This Matter, Anyway?

So does it really matter who provided the document, so long as someone did? Well, yes and no. Either way, a de-designated document becomes part of the record and can hit the jury room. However, because defense failed to produce it as requested, jurors might draw a conclusion or two from that (and not necessary wholly proper conclusions, I might add). This also gets into whether a jury would ever be told the origin of the document, and that might not happen. Although if it does, a jury might conclude defendant Peters put less time into the search than expected.

After all, if you feel a document can help you, then why not produce it? Failing to produce the document (and making the other side do so) does not appear shrewd at all. Instead, it gives forth the appearance of disorganization at best, and outright deception at worst. Of course, that is for a jury to decide. My speculations only go to what a jury might think.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 11

Page 12

And then on this page, plaintiffs reiterate that defense counsel has attempted to bar de-designation of the ledger on the novel grounds that it could prove embarrassing.

So next, the document gets into the Gossett deposition. Essentially, Gossett produced hundreds of emails, and most of them were between him and defendant Peters. However, Peters produced nearly none of these documents. Because emails can often be deleted, even for the most innocent of reasons (such as an attempt to clean out one’s inbox), this does not necessarily show ill intent. Yet a jury may think so all the same.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 12

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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4 Comments:

  1. Pingback: Axanar Defense Response to Plaintiffs' Request for Ex Parte Relief - Semantic Shenanigans

  2. Pingback: G & T Show 260 - A Big Redacted Mistake - G & T Show

  3. Great article and explained everything so anyone can understand it.

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