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 13

So essentially, plaintiffs sent a letter to defense, asking them to produce the emails. And then in the document, they state:

Defendants’ counsel responded by pointing out one email between Mr. Peters and CBS that he had produced. Defendants’ counsel, however, failed to explain the lack of production of Mr. Peters’ communications with Mr. Gossett, and refused to produce Mr. Peters for a further deposition.

However, Defendants’ counsel also stated that she had located over one hundred unproduced emails from Mr. Peters, that those documents would be produced this week, but that Mr. Peters would not agree to sit for a further deposition regarding these productions.

Emphasis theirs.

More Emails?

In addition, apparently defense located yet more emails and agreed to produce them, although their content was unknown (e. g. there could conceivably be email communications regarding lunch orders, and of course those are irrelevant) and defense said they –

… would be producing them [the emails] (of unknown content) but that he would not agree to be deposed for any more than two hours, and only with respect to the limited documents that were located after his October 19 deposition. Mr. Peters’ counsel did not agree to produce Mr. Peters’ text messages, social media postings, nor did counsel agree to certify that MrPeters’ emails had been searched for all responsive documents.

Given that CBS has produced many communications with Mr. Peters that he did not produce himself, that Mr. Gossett has produced voluminous correspondence regarding the Axanar project that Mr. Peters did not produce himself, and Mr. Burnett has not produced any documents or communications relating to his involvement with the Axanar project, Plaintiffs believe that the Court should order that Mr. Burnett and Mr. Peters certify that all responsive documents (including emails, social media and internet postings and text messages) have been produced, and produce Mr. Peters, without restriction, for a further deposition once those documents have been turned over.

Hence we get to the heart of the matter. Defense failed to produce a number of communications on time, yet did deliver at least some of them later. Plaintiffs demand a second deposition in order to question defendant Peters about the missing documents. Defense offers two hours; plaintiffs want five.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 13

Page 14

So now we come to the actual argument (and you thought they had been arguing all along, eh?). Plaintiffs demand:

Mr. Peters Should Be Required To Certify That All Relevant Documents Have Been Produced And Should Appear For A Second Deposition.

Why does this certification matter? Because it gets defense on the record as saying, “this is it; it’s all we’ve got.” And remember what I said, supra, about what a jury might conclude? Defense is fighting because they are concerned that such a definitive statement in the official record could be used to impeach Peters’s credibility on the stand.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 14

Page 15

And then this page essentially offers citations in support of the argument mentioned on page 14, supra. I won’t go into the specifics.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 15

Page 16

So this page is another bunch of citations and reiterations of plaintiff’s argument. And I think we can both skip the details on it.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 16

Page 17

And then on this page, plaintiffs make their next argument:

Mr. Peters’ Summary Of Funds Expended Should Not Be Designated Attorneys’ Eyes Only.

As plaintiffs state:

Mr. Peters had not provided any legitimate basis to support the designation of the expenditures made on the Star Trek: Axanar film as “Highly Confidential” or “Attorneys’ Eyes Only.” That Mr. Peters does not want to reveal the amounts that he paid to himself and his colleagues, or the amounts he spent on personal expenses, is not a sufficient basis for restricting access to that information.

So before anyone talks about profit (or the lack thereof), understand that profit is not an element of this cause of action. Money damages are important, yes, but plaintiffs can win even if they don’t prove actual monetary damages. Those would be statutory damages, which I went over already, here.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 17

Page 18

And then plaintiffs provide their third and final argument, to wit:

Defendants Should Be Ordered To Provide A Privilege Log

As noted previously, a privilege log lists anything one side deems privileged. However, the other side can (and often does) use this list to determine which documents they want to try to have de-designated. Hence producing a privilege log can, conceivably, lead to more meeting and conferring, and perhaps to further motion practice.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 18

Page 19

And now, as always, the document ends with a signature page. So there’s nothing new here, at least when it comes to this particular page.

Axanar Plaintiffs’ Ex Parte Application for Order

Axanar Plaintiffs’ Ex Parte Application for Order, Page 19

What’s Next?

This matter can settle at any time. However, we will blog about whatever documents we’ve got. The case, even after settlement, remains in our wheelhouse. Up next are the supporting documents.

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.

Leave a Reply

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.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  • Advertisement