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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.
So as always, we start with a cover sheet.
And the actual, full description of this document is:
PLAINTIFFS’ EX PARTE APPLICATION FOR ORDER (A) THAT DEFENDANTS ARE TO PRODUCE DEFENDANT ALEC PETERS FOR FURTHER DEPOSITION AFTER HE COMPLETES PRODUCTION OF RELEVANT DOCUMENTS; (B) THAT FINANCIAL SUMMARY REGARDING DEFENDANTS’ EXPENDITURES OF FAN FUNDS BE DE-DESIGNATED; (C) THAT DEFENDANTS PROVIDE A PRIVILEGE LOG
Axanar Plaintiffs’ Ex Parte Application for Order, Page 1
Plaintiffs ask for three things, explained best in their own words:
Plaintiffs are requesting that Mr. Peters and his counsel confirm that he has produced all relevant emails, documents and social media postings and, thereafter, sit for a further deposition so that he can be examined regarding the documents that other witnesses have produced, that Mr. Peters is still in the process of producing this week, and any other documents that are turned over prior to that supplemental deposition.
Plaintiffs request that the Court order the de-designation of a financial summary prepared by Mr. Peters’ accountant that was marked as “Highly Confidential” or “Attorneys’ Eyes Only” as it is not a trade secret and does not otherwise contain competitively-sensitive information. Defendants request that this document be deemed not Confidential Information under the Court’s Protective Order.
Third, Plaintiffs request that the Court require Defendants to provide a privilege log relating to Mr. Peters’ pre-lawsuit communications with counsel.
So here’s what that all means in plain English.
First of all, this request pushes to get defense to state under oath that they have turned all of the documents, etc. listed and previously requested. Because depositions and sworn pleadings/documents have perjury penalties (in the event of untruths in deposition or on such documents), plaintiff tries to get the defense to make a statement as to discovery completeness under oath. Why? Because such documentation can be used to impeach a witness at trial.
Most noteworthy, the term ‘impeachment’ at trial isn’t the same as using that term with reference to, say, American presidents. Here, the term means to discount and disprove what someone says at trial. If I say an event happened on a Tuesday, and I swear to that, and then you show at trial that it happened on a Wednesday, that doesn’t necessarily mean I’m lying. However, it does mean my memory might not be as reliable as my lawyer and I would want a trier of fact (a jury or a judge; it depends on the specific circumstances of a case) to believe.
And a second part of the first request sneaks in – to bring defendant Peters back for a second deposition. Regardless of how you feel about this case, the plaintiffs should be given a chance to ask about documents not produced for the first time around. After all, they could not ask about them before (and I would say the same if the parties and their positions were reversed).
So this one (more specifics, infra, and in the other, related blog posts) concerns bringing a certain document to light. The document in question can’t be used at trial (as it has a “highly confidential” designation). But if that designation can change, then the document can come to light. And then it can be used to impeach witnesses, of course.
Privilege logs list the secret stuff. A party can’t just vaguely say, “well, a bunch of stuff is secret.” With a privilege log, the potentially secret stuff must be listed. And then the other side can figure out what to try to get re-designated (if anything).
So on this page (and the previous), plaintiffs explain why ex parte relief should be granted. And a big part concerns the depositions of Christian Gossett (director of Prelude to Axanar) and defendant Peters. The gist: Gossett turned over thousands of pages, representing hundreds of emails, whereas Peters did not.
Plaintiffs repeatedly advised Defendants’ counsel that Mr. Peters appeared not to have turned over documents relating to his creation of his independent Star Trek film project, including emails, social media and internet postings and other materials. Mr. Peters’ counsel has refused to search for any additional documents and to certify that Mr. Peters has produced all responsive documents. Plaintiffs would like the opportunity to depose Mr. Peters regarding all of the relevant documents in this case, after he has turned over those documents.
Most interesting: the request for Internet postings and social media. While anyone can delete emails (whether deliberately or accidentally – and we have all been there), getting information off the Internet remains far trickier. Because even if you decide you don’t want to have a website anymore, or you close your Facebook account or your Twitter stream, often something still exists. Some items exist in the Internet Archive (the ‘Wayback Machine’). And others can be located via a subpoena to a social media platform such as Snapchat or to an Internet web hosting provider such as GoDaddy. Yes, they have records. And no, they won’t dig their heels in and refuse to turn over your stuff. They will turn it over gladly.
Furthermore, this doesn’t take into account anyone taking screenshots.
So Jennifer Jason made this argument and then, at the bottom, signed the document, as always.
And now we get to a table of contents for the rest of this shooting match.
So the next page contains a table of authorities which plaintiff relied upon when creating the document.
And now we get to the guts of the argument. First of all, the introduction sets out a very brief synopsis of the facts so far. So plaintiffs reiterate the information about the documents they received from Gossett, and the lack thereof from defendant Peters. Furthermore, they add:
In addition, Robert Meyer Burnett (represented by Defendants’ counsel), the director of Star Trek: Axanar, and a key member of the Axanar Productions crew, was deposed earlier this month and testified that he did not turn over any of his emails with Mr. Peters and did not search for or produce any of his text messages with Mr. Peters. Moreover, neither Mr. Peters nor Mr. Burnett searched for or produced any of their internet and social media postings relating to the Axanar Works.
Two things leap out from this paragraph:
- Neither Burnett nor Peters searched for any of their Internet or social media postings with reference to Axanar and
- Defense counsel represents Burnett , possibly on a pro bono publico basis.
Should they have looked?
Hell yeah. And that’s why applications like this happen. Because without the documents, counsel has every right to demand a second deposition, exactly what they did here. That wastes court time and client money and judges don’t like that.
Should Burnett be represented by defense counsel when he’s not a party to the suit?
Of course this is not my case. Yet I feel a conflict of interest exists. Because defense counsel will naturally try to protect her first client. And if Burnett (or any other person Ms. Ranahan may have decided to represent herein) says something which could harm himself (Burnett) yet help out Peters or the Axanar Works, then that presents a major dilemma for Ranahan.
So as an attorney, I, personally, would not have made such an offer.