Axanar Joint Report and Request for ADR
The Axanar Joint Report and Request for ADR are a pair of documents recently filed with the California Central District Court in this matter. As always, we have the documents and you are free to read and download them, if you so desire. These papers are a matter of public record and I have paid for them.
You have the right to know.
As before, my credentials are here. We will go through this page by page; fortunately, these are pretty short.
Axanar Joint Report
We’ll start with this one. Note: this report is filed by all of the parties to this lawsuit. That does not include the Language Creation Society, which filed an amicus curiae brief recently. The LCS is not a party to this matter and, as such, is not a part of the creation of these documents.
The report bears headings from the two pertinent offices of Loeb & Loeb (Los Angeles, where David Grossman and Jennifer Jason are; and New York City, where lead attorney Jonathan Zavin is) and the one LA office of Winston & Strawn (where Erin Ranahan, Andrew Jick, and Kelly Oki have their offices).
The parties met on April 18th of 2016 and the report is essentially the results from that meeting.
On this page, the parties get into the nature of the claims and defenses. These are the same arguments we have seen before and there is really nothing new here; it’s just put together into a much tighter package. As would be expected, the parties disagree on the particulars.
There are a few interesting pieces of information on this page, to wit:
At this time the parties do not anticipate additional motion practice seeking to
add other parties or claims, file amended pleadings, or transfer venue. Both parties
anticipate making motions for summary judgment.
Summary judgment is when the court says there are no factual issues and the matter can be directly settled based upon the law.
I have to say, as of this moment in time, as of the writing of this blog post (May of 2016), there are too many factual questions for a Motion for Summary Judgment to be granted for either of the parties herein. However, after discovery, that may change. But right now, there are too many unknowns, and Judge Klausner would rightfully, I feel, deny any such motions if they were made during this month.
Under the section entitled Status of Discovery, the parties state:
The parties held their Rule 26 early meeting of counsel on April 18, 2016.
Defendants have served requests for production, requests for admission, and
interrogatories. Plaintiffs have served requests for production and interrogatories.
As would be expected, there is plenty which is going on which does not become a matter of public record and/or is not filed with the court. Defendant Peters himself has stated that a lot of people do not know what is going on behind the scenes and, of course, that statement is true as far as it goes.
Requests for production are as might be expected; they are legal requests for the other side to produce documents or articles. In this case, electronic documents (perhaps email messages) could reasonably be included. Requests for production can be for things like x-rays which of course are not germane to this matter and are mentioned as an example of something which could be the subject of such a request but not be considered a document, per se.
Requests for admission are also fairly straightforward; they are requests for the other side to admit to/not contest certain facts, e. g. (if it was deemed necessary), defendant Peters could admit he is a United States citizen. This saves some time in depositions and at trial, if a matter goes that far.
Interrogatories are written questions which the parties exchange. The parties are only allowed 25 questions unless they get permission from the court to ask more. Oral questions would be asked in depositions.
This page then begins (it spills into the following page) the agreed-upon discovery plan.
Between this page and the immediately preceding one, supra, the parties lay out their discovery plan as follows:
Pursuant to Federal Rule of Civil Procedure 26(a), Rule 26(a) initial
disclosures will be exchanged by May 2, 2016.
Plaintiffs’ Discovery Plan: Plaintiffs have served initial interrogatories, and
document requests. Plaintiffs will need to take depositions of Defendant Alec Peters
and Defendant Axanar Productions’ employees and representatives (and potentially
non-parties) with knowledge of Defendants’ use of the Star Trek Works.
Defendants’ Discovery Plan: Defendants have served their initial requests
for admission, interrogatories, and document requests. Defendants intend to depose
all relevant witnesses, including Plaintiffs’ employees and representatives, and
potentially non-parties, who have knowledge of Plaintiffs’ alleged ownership of the
works at issue, Plaintiffs’ allegations of infringement, Plaintiffs’ alleged damages,
and additional matters supporting Defendants’ defenses, including fair use.
The parties intend to stipulate to a protective order governing confidential
information to be exchanged in discovery. The parties will seek to insure the
confidentiality of proprietary and competitively-sensitive market and financial
information and will present a proposed order to the Magistrate Judge. The parties
intend to include a claw back provision in their proposed stipulated protective order,
which will address the procedure for any inadvertently produced privileged
A claw back (or clawback) provision is a term generally used with reference to securities instruments. It is essentially used to address future unanticipated issues. In the report, as well as I can determine, the provision is intended to cover the possible inadvertent release of privileged information.
Then on this page and the following page, infra, the parties set forth a schedule.
This page finishes the pretrial schedule and adds counsels’ signatures. Here is the pretrial schedule:
The parties propose the following pre-trial schedule and trial date:
Last day to add parties: 6/8/2016
Fact discovery cut-off: 10/28/2016
Initial expert disclosures: 11/18/2016
Rebuttal expert disclosures: 12/16/2016
Expert discovery cut-off: 1/27/2017
Motions due by: 2/13/2017
Final Pre-Trial Conference: 4/24/2017
Axanar Request for ADR and Order and Referral for Alternate Dispute Resolution
You may recall, but these were requested a while back by Judge Klausner.
Request for ADR
There is nothing much to discuss here, save that the parties selected the first option, which is to work with a Magistrate Judge. While it is not spelled out in the actual document, the title of this document in PACER specifies the parties are requesting The Honorable Charles F. Eick.
Order and Referral for ADR
These sorts of orders are not valid without a judge’s signature. This document is really just a form. Will it be signed? That part is highly likely; the court will attempt to get the parties to settle. But they do not have to.
What Happens Next?
The parties were originally scheduled to present oral arguments in favor of or in opposition to the second defense Motion to Dismiss on May 9th, but a recent order by Judge Klausner nixed that, so there will not be any oral arguments on this motion and its attendant replies and exhibits. The court’s order, in its entirety (there was no actual document to download from PACER) states:
Full docket text for document 39:
SCHEDULING NOTICE TO ALL PARTIES AND ORDER by Judge R. Gary Klausner. Defendants Axanar Productions, Inc. and Alec Peters’ Motion to Dismiss or Strike in Part Plaintiffs’ First Amended Complaint ; and the Application of Language Creation Society to File a Brief as Amicus Curiae , calendared for hearing on May 9, 2016, has been taken under submission and off the motion calendar. The Court will issue a ruling after full consideration of properly submitted pleadings. Counsel are still required to attend the Scheduling Conference at 9:00 a.m. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sw) TEXT ONLY ENTRY
There will still be a scheduling conference on May 9th, but the parties have got to be looking ahead to June the 8th. Will that be the Doe Day of Reckoning?
Stay tuned, sushi fans.
As always, thank you for your kind support. If you have any questions, please feel free to ask them in the Comments section. I will do my best to answer them in a timely fashion but graduation plus Capstone project are going to keep me rather busy. Many thanks for your patience!
Per Mr. Peters, the trial date has been moved up to January 31, 2017. More on this later as we get confirmation and more details.
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