Judge Klausner Rules on the Second Defense Motion to Dismiss and the LCS Amicus Brief

Judge Klausner Rules on the Second Defense Motion to Dismiss and the LCS Amicus Brief in the Axanar case

Judge Klausner Rules on the Axanar Defense’s Second Motion to Dismiss and on the Language Creation Society’s Amicus Brief

Judge Klausner Rules! Well, all judges do, of course. The ruling came down on Tuesday, May 10 and we have the documents.

My apologies for the delay; that is due to my vacation, my graduation, and school work. This matter has been discussed a lot already of course.

Many thanks to Michael Hinman of 1701 News, Jody Wheeler, and Sai of the Language Creation Society for copies of the documents herein. Thank you, guys!

These documents are a matter of public record. Feel free to take copies. You are a member of the public and you have the right to know.

As always, my credentials are here.

Background

As a tactic in their defense of Alec Peters and the Axanar Works, Erin Ranahan and Andrew Jick of Winston & Strawn filed two separate motions to dismiss plaintiffs CBS and Paramount’s copyright infringement case. This is a Federal civil matter – it is not a criminal one! No matter how this one goes, no one can go to jail in this particular case.

Furthermore, while I discuss the donors, this is not their case. The plaintiffs are suing in a copyright infringement matter, in an effort to protect their intellectual property rights in Star Trek. For donors who are concerned about where their donations may have gone, unfortunately, this case has not been brought on their behalf.

Spoiler alert: the motion was denied in its entirety, and the amicus curiae (friend of the court) brief filed by the Language Creation Society was rejected by the judge. Hence discovery will go ahead in this matter. But first, let’s look at the documents which were generated by Judge Klausner. I will go through the documents page by page and you can always ask me for a copy.

If you have any questions, please feel free to ask them in the Comments section and I will do my best to get you an answer on a timely basis. Onto the paperwork.

Scheduling Conference Order

We start with the Scheduling Conference Order. These dates are nothing new, but now we have them in a ruling. Can any of these dates be changed? Sure, but that will require some major reasoning. E. g. if a lead attorney becomes ill, or another case being heard by Gary Klausner (the Axanar case is not the sole matter he is responsible for, not by a long shot) and it goes longer (or shorter) than expected, then the dates could conceivably shuffle around a little. But do not expect it to be easy to change this schedule.

The order gives the upcoming expected dates as follows:

  • Last day to motion the Court to add parties or amend complaint is 6/30/2016 – this is going to be, perhaps, the Doe day of reckoning (we had been saying June 8 but it looks like the date is actually the 30th. Our error!).
  • Discovery Cut−Off Date: November 2, 2016 – this means depositions and exchanges of documents have to be done before this date. If a substantial number of Doe defendants are added (personally, I think the true inner circle figure is only about a half a dozen people), then this date could conceivably be extended. There would be a small domino effect on the following dates, of course.
  • Motion Cut−Off Date (last day to file): November 16, 2016.
  • Pretrial Conference: January 9, 2017 at 09:00 AM – this is of course Pacific Standard time.
  • Jury Trial (Est. 10−15 days): January 31, 2017 at 09:00 AM – if Doe defendants are added (and they have separate counsel – which they should! There are potentially some rather significant conflicting interests), then not only would the date be rescheduled into the future, the time estimate would also be extended.
Judge Klausner Rules on the Second Defense Motion to Dismiss and the LCS Amicus Brief

Scheduling Conference Order

Amicus Denial

In its entirety, this document states:

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.

The dismissal without prejudice is somewhat significant. It means the LCS could conceivably bring a second amicus if the case begins to swing in the direction of affecting them.

Again, I remind our readers that the Language Creation Society is not a party to this matter. They are not suing anyone, and they are not being sued by anyone. Rather, they entered a ‘friend of the court’ brief because they were concerned that there could be a ruling on the copyrightability of the Klingon conlang. But what Judge Klausner has essentially said here is – he is not going to rule on that, and this case is not about that (this is much of what we have been saying, too).

Court Order Denying Motion to Dismiss

This document contains the civil minutes of time spent in chambers.

Page 1

This page of course contains the title and names of all and sundry. In these documents, they don’t fool around. In the first introductory section, the denial of the Motion to Dismiss is clearly stated.

Then the court states the factual background of the case:

Plaintiffs’ copyright infringement claims arise out of Defendants’ creation of a short film entitled Star Trek: Prelude to Axanar (“Prelude to Axanar”) and a feature film entitled Axanar (the “Axanar Motion Picture”) (collectively “Axanar Works”). Plaintiffs own the copyrights in the Star Trek franchise, which includes six television series and twelve motion pictures spanning nearly fifty years.
Defendant Axanar Productions is a production company. Defendant Alec Peters is the controlling principal of Axanar Productions and screenwriter of the Axanar Works.

Pretty much every syllable of this paragraph is of significance. The court is saying, essentially:

  • The collective term, Axanar Works”, is the term the court is going to use. This term was coined by the plaintiffs and is in direct contradiction to the defense’s claim that the two films should be considered separately. Furthermore, because the defense was trying to cleave the two works in twain, their allegation that the claim against the feature-length film was unripe was not going to stand. This paragraph alone provides a clue to that (which we will get into later, infra).
  • By identifying Axanar Productions as a ‘production company’, the court may be signaling their belief that there are potentially questions of fact regarding future plans for donor cash, including the usage of the property (sometimes called a ‘studio’, sometimes called a ‘warehouse’ – be sure to check your secret decoder rings) in Valencia, California. While the actual usage of the property is not of true concern to the court, the court is certainly interested if potential future usage goes to (a) the defense’s alleged material benefits and/or (b) the plaintiffs’ possible damages in this matter.
  • By identifying defendant Peters as the controlling principal of Axanar Productions, this could conceivably open up discovery to checking into any number of earlier or concurrent commercial ventures where Peters is also the controlling principal. These could possibly even include Propworx or Woodland Terrace Investments.
  • By identifying defendant Peters as a screenwriter of the Axanar Works, the court is also indicating their belief in the existence of the script which the defense claims does not exist.

Page 2

On this page, the court adds:

Plaintiffs believe that Defendants have raised over $1 million to produce
these works, including building a studio and hiring actors, set designers, and
costume designers.

The court then goes on to describe Prelude, stating:

According to Defendants’ Kickstarter campaign, “Prelude to Axanar will be Star Trek like you have never seen it before, showing the central characters of Axanar giving both a historical and personal account of the war.” (FAC ¶ 29, ECF No. 26.)

Defendants funded this short film through Kickstarter, a crowdsource fundraising website.
Currently, Defendants are distributing Prelude to Axanar via Youtube.com.

The court then describes the proposed feature-length film, and writes:

Defendant Peters has written the Axanar script – posting about a “fully revised and locked
script” on Axanar Productions’ Facebook page. (FAC ¶ 36, ECF No. 26.) Although Defendants
originally announced that filming would not begin until 2016, Defendants released one scene from the motion picture in 2015, which they call the “Vulcan Scene.” Plaintiffs believe that Defendants have filmed at least one other scene in addition to the Vulcan Scene. Defendants are currently in the process of producing, directing, creating the sets, and designing costumes for the motion picture.

Plaintiffs allege Defendants copied numerous protected elements from the Star Trek Copyrighted Works, including elements of the Battle of Axanar, characters, species, costumes, makeup, weapons, and starships.

The court is directly referring to this image, which was presented by plaintiffs’ counsel at Loeb & Loeb:

Axanar: Plaintiffs File an Amended Complaint

Amended Complaint Page 09

It also significant that the court is referencing the larger elements of alleged infringement, e. g. the costumes as opposed to the shapes of the medals thereupon, which was the defense’s attempted elemental breakdown.

Page 3

On this page, the court directly addresses the defense’s allegations that the plaintiffs’ cause of action is not adequately specified. Remember, this was an argument, that allegedly the plaintiffs needed to break everything down to the minutiae of the episodic level (and possibly even the act and scene level). Instead, the court stated as follows:

Under Rule 12(b)(6), dismissal for failure to state a claim is “proper only where there is no
cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, a complaint must contain sufficient factual matter “‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)).
A claim is facially plausible if the plaintiff alleges enough facts to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff need not provide detailed factual allegations but must provide more than mere legal conclusions.

Hence the court is saying the plaintiffs have met the standard. Keep in mind, the motions to dismiss were not the defense! They were procedural moves intended to (a) chip away at the plaintiffs claims and, most likely also, (b) delay the proceedings. Which they did, by about four months. But now the judge is having no more of that.

Judge Klausner goes on to state:

To establish copyright infringement, Plaintiff must demonstrate “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.”
Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
Defendants argue, on several grounds, that the Court should dismiss Plaintiffs’ claims
for failure to plausibly allege copyright infringement.

Both parties do not dispute that Paramount and CBS own the copyrights to the Star Trek
Copyrighted works. Plaintiffs have identified the copyright registrations for the first episode of each television series and the registrations for each motion picture. (FAC App. A, ECF No. 26.)

The court then addresses the defense objections in turn, starting with the insufficient specificity claim:

each episode, film, and elements that were allegedly infringed to provide notice of and allow
investigation into the claims to assess liability. The Court disagrees.

Courts do not require copyright claims to be pled with such particularity; rather, courts find a
complaint sufficiently pled if it “alleges representative acts of infringement rather than a comprehensive listing.” Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co. Ltd., 3:15-CV-04084-CRB, 2015 WL 8178826, at *6 (N.D. Cal. Dec. 8, 2015). Defendants rely on Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal. 2005) to support their argument that the Court must grant a motion to dismiss when the complaint fails to identify exactly which works Defendants infringed. Defendants’ reliance on Four Navy Seals is misplaced. In Four Navy Seals, military personnel alleged copyright infringement of photographs against a media organization. The plaintiffs in Four Navy Seals simply alleged that “at least one of the [1800 photographs] was used” by defendants, without specifying which of the 1800 photographs, thus leaving defendants without any notice as to the copyrighted works at issue. Plaintiffs here, unlike the plaintiffs in Four Navy Seals, alleged copyright infringement as to the Star Trek franchise as a whole, going to great lengths to compare and contrast allegedly infringing elements of the Star Trek franchise through photographs and vivid descriptions.

The court is, essentially, accepting the plaintiffs’ extensive side-by-side comparisons between the Axanar works and the copyrighted comparable Star Trek elements allegedly being copied by the defense.

Page 4

On this page, Klausner says (and a few minor facts are incorrect, but they are no sufficient for an interlocutory appeal):

The Court finds the Complaint sufficiently provides Defendants notice of the allegedly
infringing elements at issue. For example, Plaintiffs allege that the Starship U.S.S. Enterprise, which first appears in the pilot episodes of The Original Series and is consistently portrayed throughout the franchise’s episodes and films, appears in Defendants’ Prelude to Axanar. (FAC ¶ 46 22:5-16, ECF No. 26.) This provides Defendants with notice that their use of the U.S.S. Enterprise is potentially infringing each Star Trek Copyrighted Work in which the U.S.S. Enterprise appears. Further, Plaintiffs allege that Soval, a character first seen in an episode of the Star Trek Enterprise television series and later seen in other Star Trek Copyrighted Works including the 1979 Motion Picture, appears in Defendants’ Prelude to Axanar wearing a copied costume and portraying himself as the same Soval character as in the Star Trek Copyrighted Works. (FAC ¶ 46 17:1-19, ECF No. 26.) This provides Defendants with sufficient notice that their use of Soval in the context of Prelude to Axanar is potentially infringing each Star Trek Copyrighted Work in which Soval appears.

While the court may be confusing Sarek and Soval a bit, it is clear the court was convinced by Gary Graham’s reprisal of his exact character in the copyrighted works. Further, while the court is not coming out and saying so, an inference may be drawn that the court is rejecting the defense’s mischaracterization of copyrighted characters Soval and Sarek as being insufficiently specific or memorable as to be copyrightable.

The next piece of the motions to dismiss to be addressed is the question of standing to sue. To wit:

Defendants further argue that Plaintiffs’ lack of specificity does not enable Defendants to
differentiate between which copyrights are owned by CBS and which are owned by Paramount.
Defendants contend that this differentiation is crucial to determine Paramount’s standing to sue since Paramount owns the copyrights to the motion picture franchise, which are derivative works of The Original Series. ….

Plaintiffs define the Star Trek Copyrighted Works as including both the motion pictures and
television series, providing the copyright registration numbers for the first episode of each television series and for each motion picture. To demonstrate substantial similarity, Plaintiffs describe individual infringing elements in the Complaint. (FAC ¶¶ 46-47, ECF No. 26.) However, Plaintiffs do not claim that these individual infringing elements are subject to copyright protection – these elements are included in the Complaint to demonstrate the similarities between the Star Trek Copyrighted Works and the Axanar Works. Rather, Plaintiffs’ copyright infringement claims are solely based on the Star Trek Copyrighted Works as defined in the Complaint.

This is the very aggregate argument we have been making all along, that it’s not the triangular medals or their shapes or colors; it’s their presence on the chest of a guy in a Starfleet-style uni, called by a name in copyrighted works, discussing copyrighted plot points and characters and races and languages and species and planets, which, together, makes up the overall Star Trek oeuvre. This substantial similarity test relies upon audience observations, and it does not necessarily require the excision of noncopyrightable elements.

Page 5

On this page, the court delivers the coup de grâce with reference to the standing to sue argument:

Because it is undisputed that Paramount owns the copyrights to the Star Trek Motion Pictures,
which is included in the Star Trek Copyrighted Works, Paramount has standing to sue for copyright infringement based on these works.

The judge then moves onto the defendants’ semantic objection to allegations made upon the basis of ‘information and belief’:

Here, Plaintiffs’ allegations based on “information and belief” are bolstered by specific facts and
many allegations gleaned directly from comparing the works at issue and from Defendants’ public postings on social media. For example, Plaintiffs include a screenshot of Defendants’ Facebook post of a photo of Defendant Peters posing with a “fully revised and locked script.” (FAC ¶ 36, ECF No. 26.)
Plaintiffs’ copyright infringement allegations as to the Axanar Motion Picture are based on this script, along with the Vulcan Scene.

Again, recognize that postings on social media are generally going to be looked down upon as hearsay. Yet here, the court is allowing them as a means of bolstering the term ‘information and belief’.

Judge Klausner then addresses the vicarious infringement statements made by defense (this argument was made in an effort to show that no ‘profit’ was made:

To sufficiently plead vicarious infringement, Plaintiffs must allege facts as to how Defendants
have enjoyed a “direct financial benefit.” Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004). To sufficiently plead vicarious copyright infringement, a profit does not have to be realized. Capitol Records, Inc. v. MP3tunes, LLC, 48 F. Supp. 3d 703, 712 (S.D.N.Y. 2014). Rather, “[f]inancial benefit exists where the availability of infringing material ‘acts as a “draw”
for customers.’” ….

Although it is unclear whether Defendants stand to earn a profit from the Axanar Works, realizing a profit is irrelevant to this analysis. The Court can easily infer that by raising $1 million to produce the Axanar Works and disseminating the Axanar Works on Youtube.com, the allegedly infringing material “acts as a ‘draw’ for customers” to watch Defendants’ films. A&M Records, Inc., 239 F.3d at 1023 (quoting Fonovisa, Inc., 76 F.3d at 263-64).

This is what we have been saying for quite a while now, that a ‘profit’ on the books (such as they are) is immaterial. This matter is not about leftover cash in the till.

Page 6

The court then moves onto the defense’s allegations with reference to noncopyrightable elements:

Defendants argue that the Court must “filter out” non-protectable elements of the Star Trek
Copyrighted Works. Defendants contend that non-protectable elements include the following: (1) costumes; (2) geometric shapes (e.g., the Starfleet command insignia); (3) words and short phrases (e.g., the names of planets or races); (4) elements of works derived from nature, the public domain, or third party works (e.g., Vulcans’ appearance with pointy ears or the concept of warp drive); (5) the Klingon language; (6) the mood or theme of “science fiction action adventure”; (7) scenes-a-faire elements (e.g., staples of science fiction such as starships and medals on uniforms); and (8) characters identified by Plaintiffs (e.g., Garth of Izar, Soval, and Robau). The Court finds that Defendants’ argument mischaracterizes the scope of Plaintiffs’ copyright claims.

When viewed in a vacuum, each of these elements may not individually be protectable by
copyright. Plaintiffs, however, do not seek to enforce their copyright in each of these elements
individually. Rather, Plaintiffs’ copyright infringement claims are based on the Star Trek Copyrighted Works as a whole. … The Court finds it unnecessary to analyze whether the allegedly non-protectable elements of the Star Trek Copyrighted Works are eligible for copyright protection because Plaintiff describes these elements in the Complaint solely in an effort to demonstrate how the Axanar Works are substantially similar to the Star Trek Copyrighted Works.1

It is worthwhile to also quote the court’s first footnote:

1Defendants’ Request for Judicial Notice relates to this point. (Def.s’ Request for Judicial
Notice, ECF No. 30.) Because the Court finds it unnecessary to determine whether each
individual element is entitled to copyright protection individually, the Court finds it unnecessary
to take judicial notice of the requested facts at this time.

It is looking an awful lot like the judge is not going to consider any part of the defense’s request for judicial notice, eh? Again, the court is going with a substantial similarity/aggregate-style analysis here. Rejecting a lot of discussion about triangles and pointy ears, the court instead is going for the essence of the IP in question, for it is not the ears that maketh the Vulcan.

The court then adds:

Further, even if each individual element were not protected by copyright, unprotectable elements “may gain some protection in combination with each other. Specific combinations of unprotectable elements may be copyrightable provided that the elements combined are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Muromura v. Rubin Rostaer & Associates, CV 12-09263 DDP AGRX, 2015 WL 1728324, at *3-4 (C.D. Cal. 2015). Defendants use Muromura to support their argument that the Court should dismiss Plaintiffs’ claims because Plaintiffs fail to allege copyright infringement of protectable elements, but ignore Muromura’s proposition that unprotectable elements may be copyrightable when combined. Muromura, therefore, supports Plaintiffs’ claims because Plaintiffs allege elements that, when combined with one another, form the entire Star Trek franchise of television series and films.

Note: there is a slight typo; the case is actually Muromura vs. Rubin Postaer. Either way, though, it’s kind of bad when the judge schools you on your misplaced reliance on a case that actually helps your opponent.

The court then begins to address the question of the maturity of the claims. This argument spills over into the following page, so I will address the argument there.

Page 7

With reference to the maturity of the claims (e. g. the ripeness test), Judge Klausner addressed the defense’s reliance on a case from the California Central District, and writes:

Defendants’ reliance on a case from this Court is misplaced. In Gilbert v. New Line Prods., Inc.,
No. CV 09-02231 RGK, 2009 WL 7422458, at *2 (C.D. Cal. Nov. 16, 2009), this Court found no
substantial similarity between the plaintiff’s screenplay and the defendant’s film upon an analysis of the “plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” Despite Defendants’ argument, Gilbert does not stand for the proposition that a court is unable to analyze substantial similarity involving an unfinished film. Rather, Gilbert provides an instructive analysis of how courts conduct a substantial similarity inquiry. Because Plaintiffs’ allegations of infringement are based upon an entire franchise of works, the Court anticipates that its substantial similarity analysis will primarily be based on Defendants’ utilization of similar character, theme, setting, and mood in the Axanar Works, rather than copying a specific plot line or dialogue sequence. Despite Defendants’ arguments, the Court finds Plaintiffs’ allegations of a “fully revised and locked” script and a completed scene from the Axanar Motion Picture sufficient to conduct the substantial similarity analysis.

Plaintiffs allege that Defendants have already completed and disseminated a scene from the
Axanar Motion Picture (the Vulcan Scene) and have a “fully revised and locked” script. (FAC ¶ ¶ 32, 36, ECF No. 26.) Defendants, however, argue that this script is not completed and courts have refused to look at earlier drafts of screenplays because they lack reliability in determining substantial similarity.
[several citations snipped by me]

At the motion to dismiss stage, the Court looks to whether Plaintiffs’ claims, taken as true, are
plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Taking Plaintiffs’ allegations as true, the Court finds it plausible that Defendants have completed a final script of the Axanar Motion Picture. The Court will be able to analyze substantial similarity based on the script and the already disseminated Vulcan Scene.
Further, in accordance with the Copyright Act, a work, including an infringing work, is “fixed in a tangible medium of expression when its embodiment in a copy . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. . . . When the work is ‘prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.’” Walt Disney Productions v. Filmation Associates, 628 F. Supp. 871, 876 (C.D. Cal. 1986) (citing 17 U.S.C. § 101). At this time, Plaintiffs sufficiently allege that the Axanar Motion Picture is a work consisting of the Vulcan Scene and the final script.

Because Plaintiffs have sufficiently alleged Defendants created the Vulcan Scene as well as a
“final and locked script,” the Court finds that Plaintiffs’ claims based on the Axanar Motion Picture are ripe for adjudication.

Now does the defense see where spouting off on social media can hurt them?

Page 8

On the prior page, supra, the court begins its discussion of the defense’s prior restraint argument. For the sake of readability, I am putting the quote from the court here:

Finally, Defendants argue that it would be an impermissible prior restraint for the Court to allow
Plaintiffs’ claims based on the Axanar Motion Picture to proceed. This argument is unavailing. Plaintiffs have not yet filed a motion for injunctive relief and Defendants are not restrained by the filing of this Complaint. Rather, Defendants are on notice that Plaintiffs allege certain copyright infringement allegations against them. This ruling does not affect Defendants choice to proceed with the production of the Axanar Motion Picture.

Essentially, the judge is telling the defense that, if they wish to, they can proceed with filming.

However, before the defendants and their supporters begin dancing in the streets, they are also being instructed by the court they can only do so at their peril.

Then the court concludes the document and there is a signature line. Most memorably, Judge Klausner writes:

Although the Court declines to address whether Plaintiffs’ Claims will prosper at this time, the
Court does find Plaintiffs’ claims will live long enough to survive Defendants’ Motion to Dismiss. For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss.

Order re Jury Trial and Pretrial Conference

Page 1

While the plaintiffs already requested a jury trial, this document memorializes that request and adds more requirements. These include:

All motions to join other parties or to amend the pleadings shall be filed and
served within fifteen (15) days of the date of this order.

Motions for summary judgment or partial summary judgment shall be filed as
soon as practical, however, in no event later than the motion cut−off date.

Since the date of the order is May 10th, er, doesn’t that conflict with the Doe day of reckoning, June 30th, supra?

Not really. This date is a cut off for motion practice; the June 30th date is a cut off for a party amending their pleadings.

Clear as mud?

Well, you can do some pleading (complaints and answers thereto are pleadings) amending but the idea here is to only involve the court up until fifteen days after the order. But if the defense, let’s say for sake of example, misspells someone’s name, they can correct that in their pleading even after the fifteen days have elapsed, at least for a little while.

Page 2

With reference to depositions, the court states:

The Court has established a cut−off date for discovery in this action. All
discovery shall be complete by the discovery cut−off date specified in the Scheduling
Order. This is not the date by which discovery requests must be served; it is the
date by which all discovery is to be completed.

The court ain’t kiddin’! They want everything done by the required date, and no screwing around.

The court adds:

Whenever possible, the Court expects the parties to resolve discovery
problems among themselves in a courteous, reasonable and professional manner.

While this does not necessarily mean the attorneys have been discourteous to each other in the past or have a history of being so, or that it is anticipated they would be, it’s more that the court does not want to be dealing with stupid stuff like one side insisting on holding a deposition at 9 AM and the other side insisting it not start until 9:30 AM. On the same day.

Don’t think this can’t happen. It sure as hell can happen, and it does.

Page 3

Further to the above point, the court adds:

Consistent resort to the Court for guidance in discovery is unnecessary and
will result in the appointment of a Special Master at the joint expense of the parties
to resolve discovery disputes.

AKA if you cannot get along, we will hire a babysitter.

This page includes some procedural requirements, including:

The Joint Witness List shall contain a brief statement of the testimony
for each witness, what makes the testimony unique from any other
witness testimony, and the time estimate for such testimony.

The court is rather specifically informing the parties to not dump in a garbage can full of deposition requests. Instead, the parties to be deposed must be able to bring a unique bit of knowhow to the proceedings. I believe the plaintiffs would potentially subpoena:

  • Defendant Peters
  • Robert Meyer Burnett (line editor for Prelude and listed as the director for the feature-length filmcould potentially speak to the creation of the feature-length work)
  • Christian Gossett (director of Prelude – could speak to the creation of the extant work)
  • Diana Kingsbury (in charge of fulfillment at Axanar and could speak to the items in the donor store)
  • Terry McIntosh (in charge of – I believe – programming behind the donor store, and could speak to whether funds are kept separate from the Propworx commercial enterprise)
  • Tobias Richter (special effects – could speak to the alleged copying of the USS Enterprise and other backgrounds)

I doubt anyone else would be named, and it is possible the only person I am listing here who ends up being correct is Peters himself.

As for who the defense would seek to depose, I imagine anyone who defendant Peters says met (I’m not sure if this was in person; it may have been via conference call or the like) with from CBS and/or Paramount. Could the defense subpoena their own people? Of course! They can also question them after the plaintiffs finish their questions. The main limitation on deposition questions is relevancy. E. g. no one will be allowed to ask about defendant Peters and his grades in college unless relevancy can somehow be shown to the matter at hand.

Page 4

This page includes the rules regarding motions in limine (these are motions made at the start of trial, in order to keep inadmissible items out). There are also rules on the serving of jury instructions, which are due in December of this year and the beginning of January of 2017.

Page 5

By sixteen days before trial, counsel is required to file a joint set of jury instructions for areas where there is agreement.

Page 6

This page continues the detailed requirements for jury instructions. Judge Klausner includes the following warning:

During the trial and before argument, the Court will meet with counsel and
settle the instructions. Strict adherence to time requirements is necessary for the
Court to examine the submissions in advance so that there will be no delay in
starting the jury trial. Failure of counsel to strictly follow the provisions of
this section may subject the non−complying party and/or its attorney to
sanctions.

In other words, don’t be late. Ever.

Page 7

Interestingly enough, the court requires a bound (three-ring binder organizational style) copy of all exhibits. This requirement includes the number of copies, etc.

Page 8

Along with a facsimile of the judge’s actual signature, this page includes a requirement that counsel meet ten days before trial in order to smooth out some potential evidentiary issues. Seven days prior to trial, the parties can also submit possible voir dire questions for jury selection (those are the questions asked of potential jurors in the jury pool).

What’s Next?

At this point, as the parties slouch ever onward toward trial, we will see an answer from the defense and then the public documents may dry up for a while. Depositions and their scheduled dates may or may not end up in court documents on PACER, in whole or in part. If there are no significant objections, then the deposition transcripts probably will not. Will a settlement end up on PACER? Maybe, maybe not. Certainly if new defendants are added to the mix, that information will end up in the public record. We will keep track of all dates and, if newer information comes to light, I will blog about it. But right now, as I see it, things may be quiet for a while after the answer is finally filed.

As always, please feel free to ask questions or point out errors in the Comments section. I thank you for your kind support.

Peace, out.

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

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