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Axanar Motion to Compel Discovery Ruling
The Axanar Motion to Compel Discovery was filed last month, and now there’s a ruling. I’m sorry for how small the images appear. However, please feel free to right-click and save them if you so desire. These documents are a matter of public record and you, the public, have the right to know.
Furthermore, I cover these line by line and I try to make the legalese understandable. However, if I have failed to do so in any manner, please feel free to tell me! I blog about this stuff so that it can be comprehended. If I have not met my own standard, then I want to know about that.
As many readers may be aware, I have been blogging about the CBS/Paramount vs. Axanar case for the past several months for the G & T Show. Because we’re spun off, the posts are now coming here. Thank you for crossing over!
Only three pages have been filed, but they do reference back to some older documents. It’s easier to understand if I reference back.
In late September (the first document was filed on the 29th), the defense in the Axanar copyright infringement case moved to compel discovery. One of the reasons why was because the clock was (and still is) ticking; discovery is supposed to end in early November. However, some of the defense’s demands were rather broad. I covered the motion for G & T and its accompanying attorney declarations and also supplemental memoranda.
So now it’s time to break it down, legal style.
Civil Minutes – General
The first, one-page document is not much more than a cover sheet. So all it really does is confirm the parties met and counsel made their arguments. Lead attorney Jonathan Zavin, and David Grossman, Esq. appeared for the plaintiffs from their firm, Loeb & Loeb. Lead attorney Erin Ranahan, and Kelly Oki, Esq. represented defense from their firm, Winston & Strawn.
Civil Minutes – Axanar Motion to Compel Ruling Page 1
Then we get to this page, which shows the overall ruling.
First of all, the ruling notes defense has withdrawn their Issue 3. This issue sought to compel discovery of chain of title documents for Star Trek. Because the plaintiffs complied prior to when the motion was heard and decided, it was withdrawn. So we won’t worry about that, and neither did Magistrate Judge Charles F. Eick. Note: the judge assigned to this matter, Gary Klausner, did not decide the motion.
And the other portion of the ruling reads as follows:
On or before October 28, 2016, Plaintiffs shall: (1) 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;
(2) serve supplemental answers without objection to Interrogatories Nos. 8 and 9; (3) produce for
deposition a witness or witnesses prepared to testify as to Deposition Testimony Subject No. 28;
(4) serve a privilege log identifying with particularity all documents withheld under claim of attorney-client
privilege; and (5) to the extent not otherwise ordered herein, fulfill all discovery-related promises
previously made by Plaintiffs to Defendants.
Except as expressly stated herein, the Motion is denied.
For clarity’s sake, I’ll provide the details under the following page.
Civil Minutes – Axanar Motion to Compel Ruling Page 2
So, what do all of the numbers mean? Here’s where the prior information comes in handy. So take out your secret decoder rings and I’ll explain.
This request reads:
All Documents that refer or relate to the commercial impact, if any, that the
promotion, production, or release of fan films, including but not limited to fan films
inspired by Star Trek, has had or might have on the value of the works from which the
fan films are inspired, including but not limited to the Star Trek Copyrighted Works.
Defense is using commercial impact in an effort to show (or, rather, not show) market harm to the plaintiffs. And if defense can prove a lack of market harm to plaintiffs, defense might get out of any real damages.
Except that won’t help them when it comes to statutory damages.
This one says:
All Documents and Communications demonstrating how the market for Your
business has been impacted by the Axanar Works.
And again, we have a push to get market harm information (if no market harm can be shown, it doesn’t mean the fair use defense will necessarily fly).
And then the next request was for:
All Documents and Communications discussing the impact, or lack thereof, of
the Axanar Works on Your business.
Personally, I had felt (and I still do) that this request is overly broad and might stray into privilege territory. However, see the privilege log, infra, plaintiffs will probably be able to assert some privileges so long as they put the justifications for same into writing.
So this one says:
Documents and Communications sufficient to show your profitability, revenue,
ticket sales, and product sales related to Your Works from 2009 to present.
While defense received a favorable ruling on this particular request, the court added that this is
limited to the works allegedly infringed and also limited to documents (which may be
summary documents) sufficient to show revenues and profitability)
Plaintiffs’ objections mainly centered around breadth. Furthermore, they objected the request was overly burdensome. By limiting this request, the judge more or less splits the difference. As a result, we probably won’t see anyone producing or demanding revenue information for, say, utterly irrelevant Voyager tie-in novel revenues.
And then this one was granted although “limited to 2009 to the present”:
All Documents that refer or relate to fan films inspired by Star Trek.
Plaintiffs did promise to produce documents back to 2011; this is (perhaps) a slight difference.
So here is another one “limited to 2009 to the present”:
All Documents that refer or relate to Your decision whether to pursue legal
action, including but not limited to sending DMCA takedown notices, sending cease
and desist letters, and/or filing lawsuits, with respect to fan films inspired by Star
Trek, including but not limited to Star Trek: Hidden Frontier, Starship Exeter, Bring
Back Kirk, Star Trek: New Voyages / Star Trek: Phase II, Star Wreck: In the
Pirkinning, Star Trek in Lego, Star Trek: Aurora, Star Trek: Of Gods and Men,
Starship Farragut, Star Trek: The Next Animation, Dan Hauser’s Animated Star Trek,
Star Trek: Phoenix, Star Trek Continues, Star Trek: Specter, Star Trek II: Retribution,
Star Trek III: Redemption, Star Trek: Reunion, Star Trek: Secret Voyage, Star Trek:
Dark Horizon, Star Trek: Absolution, Star Trek: Renegades, and Star Trek: Horizon.
Hence Potemkin, Star Trek: Dark Armada, Star Trek: Intrepid, Star Trek: Odyssey, Blood of Tiberius: A Star Trek Fan Production, Borg War, Starship Valiant, and Star Trek: Ambush (and probably many more) are off the hook.
So, does this mean the court is accepting defense’s claim that they didn’t know they were infringing? Not necessarily, although the ruling at least gives defense a chance to prove same. Maybe.
And then we get to this one:
All Documents and Communications regarding Your decision whether to send a
DMCA takedown notice to YouTube or any other person or entity with regard to
Prelude to Axanar or the “Vulcan Scene.”
Back when I covered the motion for the G & T Show, I predicted this one could trip Judge Eick’s ‘reasonability meter’. And so it has.
In addition, the next request is for:
All Documents that refer, relate to, or constitute any actual or potential
guidelines for fan films that You have Created, implemented, or considered creating
or implementing, including but not limited to any research, analysis, or
Communications regarding this subject.
With this one, defense may see the memoranda and meeting minutes regarding the creation of the current fan film guidelines. I had said before that I felt this one was irrelevant. However, the judge disagreed with me. Because this information will be discovered, we may see some of it if it makes its way into some future motion. And if plaintiffs’ position flies, that the guidelines weren’t really created because of Axanar, then these documents may turn out to be not so relevant after all. We’ll see.
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.”
Yet again, the plaintiffs’ response was objections as to broadness and vagueness. And somewhere, Justin Lin and JJ Abrams are facepalming. However, the court deems it relevant and, apparently, with no caveats or restrictions.
And this is why you don’t go inserting yourself into other people’s lawsuits.
And then this one says:
Identify and describe the harm or injury You claim to have suffered as a result
of Defendants’ actions as alleged in the FAC.
By FAC, they mean the First Amended Complaint. And so this one is another piece of, maybe, the market harm puzzle.
Hence that may be what Winston & Strawn are doing here in the first place. Because this case will likely be a loser at trial or on summary judgment, they are looking ahead to an appeal. And they may be seeking clarification on just exactly what market harm really is.
Defense counsel requested:
Identify and describe the damages that You seek for each cause of action
asserted in the FAC, including by identifying and describing the method(s) used to
compute these damages.
And yet again, the plaintiffs’ lawyers countered that the demand was overly burdensome, etc. In addition, it called for a legal conclusion. Why? Because damage assessments are the purview of expert witnesses. And in this case, such a witness would probably be a CPA.
However, the court is going along with it. So we’ll see what happens. This may mean the parties will jointly hire a CPA to comb through everything quickly in order to get to the specifics.
Deposition Testimony Subject No. 28
All communications between You and J.J. Abrams and/or Justin Lin regarding
fan films, this lawsuit, and/or Axanar.
While objecting as to breadth and relevance, the plaintiffs also note they know of no such communications. And this makes the May 19, 2016 ‘announcement’ by Lin even weirder. At the time, I wrote, “… even if Lin and Abrams have the clout they feel they do, such an announcement was premature at best. Furthermore, such talks would be confidential, subject to NDAs.”
And I also wrote, “What we have here is, instead, an unauthenticated and conveniently vague hearsay statement that seems to have been made solely for the purpose of generating applause at the fan event.”
So now that vague hearsay statement is biting Lin and Abrams in the nether regions. And by extension, that also means it’s biting plaintiffs.
However, if there are no documents, then there are no documents. Would Lin or Abrams be called to testify? Probably not, although this case has been so weird so far, so who knows?
A privilege log is basically just a list of documents a party considers privileged. Remember how I mentioned, supra, that Request #36 might stray into privileged territory? If it does, then plaintiffs would record that information here.
Fulfill All Discovery-Related Promises
And of course this makes sense. Whether a party is stonewalling, or they just can’t find stuff, if they promise it to the other side, then they must deliver it or show that they tried and the stuff just plain does not exist.
What Defense Didn’t Get
There were a few items. And I’ll list them here:
This one says:
All Documents that refer, relate to, or constitute Your expenditures relating to
the promotion or production of the Star Trek Copyrighted Works, including but not
limited to the salaries paid to the directors, producers, actors, and all other persons
involved in the promotion or production of such works.
Yeah, that one was never going to fly. After all, if anyone can prove to me how the late Grace Lee Whitney’s salary has anything to do with the Axanar case, I will personally send to you a pie of your choosing or I will make a comparable contribution to the children’s or animal-related charity of your choice. I mean it.
And this one also seems to have failed the relevancy test for the judge:
All Documents that refer or relate to Star Wars fan films, including but not limited to (a) all Documents that refer,
relate to, or constitute Lucasfilm’s guidelines and/or attitudes regarding
fan films, and (b) all Documents relating to any meetings or other Correspondence
between You and any other person or entity, including at Lucasfilm, regarding this subject.
First of all, depositions continue. I understand defendant Peters was deposed today. However, it might be easier to follow everything with a timeline.
Future expected timeline of events
- 28 – Scheduled date for deposition of Terry McIntosh, former CTO of Axanar. Mr. McIntosh has stated that he has produced 3 terabytes of data regarding this matter.
- 31 – Mandatory Settlement Conference for all parties
- 2 – Scheduled discovery cutoff date
- 16 – Motion cutoff date
- January 2017
- 9 – Scheduled pretrial conference
- 31 – Scheduled trial date
So stay tuned! Because there is a lot more to come.