Axanar Pretrial Voir Dire and LCS Petition

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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Axanar Pretrial Voir Dire and LCS Petition

The Axanar Pretrial Voir Dire and LCS (Language Creation Society) Petition to file an amicus curiae brief are up. In addition, we have a few more odds and ends as the parties wait for Judge Klausner to rule on the recent motions for summary judgment. So hang in there! I have a hodgepodge of stuff to go through and I will try to be brief. And, as always, if anything needs further explanation, hit me up on the Contact page and I’ll do my best to answer you in a timely fashion.

Semantic Shenanigans Axanar Pretrial Voir Dire and LCS Petition

Defense Errata

Axanar Pretrial Voir Dire and LCS Petition – Notice of Errata

So before we go any further, the defense finally (after about six weeks!) realized, oops, they had included some information they had wanted redacted and/or eliminated. And this consisted of the plaintiffs’ responses to Interrogatory #8. Because this information was in the Defense Summary Judgment Motion (more specifically, the Oki Declaration and Exhibits 1 and 2), I’ll just link you there.

And except for deleting the responses to Interrogatory #8, the exhibits seem identical so I won’t copy them here.

Language Creation Society Petition to File an Amicus Curiae Brief

Axanar Pretrial Voir Dire and LCS Petition – Language Creation Society Petition to File an Amicus Curiae Brief

First of all, you may recall that I covered the first go-’round on the G & T Show Fan Dance blog. The initial LCS amicus curiae brief had a filing date on or about May 10th. And the plaintiffs’ objections and defense’s response thereto had a filing date on or about May 16th. Furthermore, when Judge Klausner ruled on the amicus (on or about May 18th), he denied it.

And at the time, the judge wrote:

On April 27, 2016, Language Creation Society (“Amicus”) submitted an Application for Leave
to File Brief as Amicus Curiae. Amicus argues in support of Defendants’ Motion to Dismiss that the Klingon language should not be entitled to copyright protection. In analyzing and ruling on Defendants’ Motion to Dismiss, the Court does not reach the issue of whether languages, and specifically the Klingon language, are copyrightable. Therefore, none of the information provided by Amicus is necessary to dispose of the Motion to Dismiss.

Accordingly, the Court DENIES Language Creation Society’s Application without prejudice.

Furthermore, as before, the LCS seeks a ruling on the copyrightability of Klingon. So we shall see if they will get the go-ahead to file an amicus.

Most noteworthy, they cite the California Code of Civil Procedure, stating:

CCP § 1008(b) states that “[a] party who originally
made an application for an order which was refused in whole or part
[…] may make a subsequent application for the same order upon
new or different facts, circumstances, or law…”

However, the CCP does not apply. Instead, the Federal rules do.

Plaintiffs’ Notice of Lodging Pretrial Order

Plaintiffs’ Notice of Lodging Pretrial Order

Proposed Order

Exhibit A

And then these documents concern some final information required for trial. This includes a number of undisputed facts not requiring proof, e. g. that TOS premiered in 1966. And Exhibit A consists of the Joint Exhibit List, which we have already seen. Finally, the main bit of interest is that the parties are required to file jury instructions seven days prior to the scheduled trial date. Hence, that would be January 24th. Basically, these documents constitute a number of items from the summary judgment motions not in dispute.

Defense Voir Dire Questions

Defense Proposed Voir Dire Questions

First of all, voir dire essentially consists of the questions the lawyers can ask the prospective jurors. So recognize most of these Axanar Pretrial Voir Dire questions are rather standard, e. g. questions concerning educational levels, whether a person has seen press coverage of the case, etc. However, I found it most interesting that Star Trek is mentioned first and then questions about science fiction as a whole don’t start until the fifth question. Given that Star Trek is a subset of science fiction (unless you’re delusional or, apparently, a writer for the increasingly ironically named History Channel), why not mention science fiction first? While this is not a big deal, it’s just one of the things that makes you go, ‘hmm’.

And what further interests me is that defense had wanted to (more or less) exclude the mention of ‘Star Trek’ altogether. See their Defense Motion in Limine to Exclude #1. Apparently things have changed a bit; perhaps the focus will be on ‘improper’ mentionings or the like. And for many jurors (and this is no slam on jurors), that may turn out to be a difference without any distinction whatsoever.

Plaintiffs’ Objections to the Language Creation Society Petition to File an Amicus Curiae Brief

Plaintiffs’ Objections to LCS petition

Grossman Declaration

First of all, plaintiffs’ objections point out the LCS’s incorrect citation of the CCP (California Code of Civil Procedure). And their first argument concerns timeliness:

Here, Plaintiffs and Defendants each moved for summary judgment on
November 16, 2016. Plaintiffs and Defendants each submitted their opposition to
the Motions on November 28, and Plaintiffs and Defendants submitted their replies
on December 5. The hearing on the Motions was originally set for December 19,
and it was taken off calendar, having been fully submitted to the Court. LCS waited
a month and a half after the filing of the Motions, after both sides had already
completed their briefing, to file its renewed application to file an amicus brief.

Its filing was on December 29, 10 days after the hearing date set for the Motions. This
is extraordinarily untimely. There is no provision in the Federal Rules or in this
Court’s local rules for filing a separate opposition to an amicus brief, and Plaintiffs
do not have enough time to provide a substantive response, nor would the Court
have sufficient time to review that response, in advance of ruling on the Motions.
LCS offers no justification for its failure to submit an amicus brief earlier.

Exhibit A

Exhibit A

Emphasis theirs. In addition, plaintiffs note the LCS sent an email (Exhibit A, supra), requesting a brief conference. However, the LCS petition ended up in the court record less than a day later. Per local rules, they should have given at least seven days’ notice. Furthermore, plaintiffs state the LCS seeks a ruling based on hearsay, and that the issues in the amicus are not before the court.

Finally, plaintiffs request sanctions. And they seek attorneys’ fees (or at least an opportunity to respond with up to 15 pages of their own brief):

Local Rule 11-9 provides that: “The presentation to the Court of frivolous
motions or opposition to motions (or the failure to comply fully with this rule)
subjects the offender at the discretion of the Court to the sanctions of L.R. 83-7.”

Because the dates don’t lie and the issue is a stretch at best (the case can litigate dialogue without mentioning language at all), I suspect the LCS’s petition will be denied. However, I won’t hazard a guess regarding sanctions.

Plaintiffs’ Voir Dire Questions

Plaintiffs’ Proposed Voir Dire Questions

Yet again, the questions are mostly standard. However, these leapt out at me:

39. CBS Studios and Paramount Pictures are large companies. Do you
think that you can treat them equally with the individual defendants, and that you
will not be swayed by sympathy for the “smaller guy”?

And

43. Do you read entertainment blogs like The Hollywood Reporter? Do
you read “amateur” or online blogs, or listen to podcasts about Star Trek or other
science fiction works?

And

Do you read any “tech” blogs, such as Tech Crunch,
Mashable, Giga Om, or Gizmodo?

Hence as might be expected, plaintiffs need to concern themselves with potential jurors who might ignore the facts and instead seek their own brand of ‘justice’ (an issue for either side, I might add). Furthermore, that means our listeners and listeners to the G & T Show, and our readers, and readers of blogs like Fan Film Factor, Axamonitor, Trek Geeks, etc. would be challenged. And this would not surprise me.

What’s Next?

Hence as of now, we are waiting for rulings on the two summary judgment motions and on the LCS petition. Furthermore, we might see some objections to the parties’ proposed voir dire questions. In addition, a pretrial conference is scheduled for January 9, 2017, and the parties must file their proposed jury instructions by January 24, 2017. And trial is scheduled for January 31, 2017. Or the matter could settle at any time, or the parties could appeal various rulings. So please stay tuned and, as always, I thank you for your kind support. Have a happy, healthy, and safe new year.

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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