Photo/Casey Marshall

Court Grants Studios' Request for Axanar Financials

Axanar’s Attorney Opposes CBS, Paramount’s Request for New Peters Deposition

Main article: Plaintiffs: Peters Withheld Trove of Email

A day after attorneys for CBS/Paramount asked the court, a federal magistrate granted an order allowing Axanar’s financials to be entered into the record, still not visible to the public but possibly to be used in upcoming depositions, possibly with J.J. Abrams and Justin Lin.

On October 28, 2016, Federal magistrate Charles Eick signed the order proposed by the studios’ attorneys, while Axanar’s lawyer Erin Ranahan made her case for why the magistrate should reject CBS and Paramount’s new motion.

UPDATE On Monday, October 31, Judge Charles Eick formally denied the plaintiffs’ ex parte motion but still granted them most of what they sought.

See also: Court Orders Peters Deposition, Other Plaintiff Requests

What CBS and Paramount Want

The plaintiffs’ attorneys had filed an emergency motion asking the court to order:

  • A second deposition of Axanar producer Alec Peters.
  • Remove the “attorneys eyes only” designation of Axanar’s financial information that had been disclosed so far.
  • Peters to produce a log of privileged communication with legal counsel he had consulted prior to the December 2015 filing of the copyright infringement lawsuit against him.
THE SIGNED judicial order (PDF) allowing Axanar’s financials to be filed under seal with the court.

With discovery scheduled to conclude November 2, CBS and Paramount want to be able to:

  • Question Peters again following revelations of at least hundreds of pages of emails Peters had not disclosed.
  • Use the financial information prepared by Peters’ accountant when questioning witnesses in the few days remaining before discovery ends.
  • Examine what communication Peters had with lawyers prior to the studios’ lawsuit against him.1)

About their need to be able to use the financial information, the studios told the judge:

There are two remaining depositions in this matter, and Plaintiffs will be prejudiced if they are not able to provide this financial summary to actual and potential witnesses, as this document evidences the nature of Mr. Peters’ Star Trek production, which he has (in this lawsuit) mischaracterized as a “fan film” and a non-commercial enterprise.2)

Axanar Opposes Emergency Motion

DOWNLOAD the judge’s signed order (PDF) granting the plaintiffs’ request, and the defense's opposition (PDF) to the plaintiffs’ emergency (ex parte) motion.

In the meantime, Ranahan filed her opposition to emergency motion the plaintiffs, saying the “alleged emergencies are wholly self-created and amount to little more than Plaintiffs’ failure to raise these issues with the Court in a timely manner … wasting the Court’s time and resources.”3) In that pleading, Ranhan said the plaintiffs’ motion was moot because:

  • She had already offered to make Peters available for a second deposition.
  • Axanar’s attorneys had repeatedly attempted to meet with opposing counsel to set parameters of the privilege log the defense intended to provide.
  • Defense lawyers planned to turn over additional documents October 28 that would address any remaining issues.4)

Tit for Tat

Ranahan went on to tell the court the emergency motion was a tit-for-tat after part of her motion to compel discovery resulted in a court order forcing the plaintiffs to hand over more of the documents sought be the defense:

Apparently in response to being required to finally undertake a diligent search for responsive documents, Plaintiffs suddenly decided to manufacture their own discovery issues. … Defendants have continued to engage in good faith efforts to resolve these disputes, but it appears Plaintiffs were more interested in filing the [emergency motion] than genuinely reaching an efficient and reasonable resolution.5)
Winston & Strawn attorney Erin Ranahan struck back against the plaintiffs’ emergency “ex parte” motion, saying most of its issues are moot.

Moot Issues

Ranahan explained how Axanar had worked to address each of the requests the plaintiffs submitted in their emergency motion, and raised concerns about plaintiffs’ counsel leaking confidential information.

Peters' Second Deposition

CBS and Paramount asked the court for another chance to depose Peters after they uncovered a trove of his emails that he had not previously disclosed. Prelude to Axanar director Christian Gossett produced the emails at his own deposition on October 22.

Despite the late revelation of additional Peters emails, Ranahan said in her opposition brief that more documents were being delivered October 28, and that the plaintiffs should have waited to see what was included before they filed their emergency motion.

Because of those additional documents, Ranahan offered opposing counsel the chance to depose Peters a second time — but with a hitch:

So that you may ask Alec about those and any other documents you have obtained since his last deposition, we will make him available for no more than two hours of a deposition. The deposition would be limited to asking questions about documents received after his last deposition.6)

In her motion, studio attorney Jennifer Jason expressed concern that Peters appeared to have withheld evidence, and told the judge two hours wasn’t enough; the scope of the new documents should entitled the plaintiffs to an open-ended deposition. The magistrate judge was due to rule on the request.

Privilege Log

In his October 19 deposition, Peters revealed he had retained other attorneys prior to the lawsuit, prompting the plaintiffs to ask for a log showing communication Peters had had with those lawyers. The plaintiffs said they had previously been led by Ranahan to believe there had been no such communication.

Ranahan responded that the studio lawyers had refused to have a meaningful discussion about privilege logs, including what they were specifically looking for, such as subjects, search terms, or types of attorney discussions the plaintiffs believed should be logged.

PRIOR TO the lawsuit, Alec Peters had engaged attorney Eric Feig’s law firm to help ‘professionalize’ Axanar.

Peters had posted on Facebook in April 2015 that he had engaged lawyer Eric Feig‘s firm to draw up various legal papers to professionalize Axanar Productions:

From them we got 8 standard documents that we are now disseminating to our cast and crew. Everything from simple Non-Disclosure Agreements (NDAs) to Deal Memos. So unlike a fan film, that does everything on faith, we are doing everything needed to protect Axanar, Axanar Productions and Ares Studios. It really protects everyone.7)

Also, Peters had blogged about obtaining in-house counsel before the lawsuit:

Today was a day spent with Andrew Schmidt, Axanar Productions’ new in-house legal counsel. Andrew has been a friend for a long time, and will be working with our legal team at Eric Feig Entertainment Law, who handles all our big legal issues. Andrew is a volunteer and will be reviewing everything we do as well as working on our 501c3 application (non-profit status) for Axanar Productions. He will be handling all paperwork and making sure we are well buttoned up.8)

Axanar's Financials

In her opposition brief, Ranahan told the judge the defense had submitted revised financial information on October 28, designated only “confidential” instead of “attorneys eyes only,” rendering moot the plaintiffs’ request in their emergency motion.

DEFENSE REFUTES ‘EMBARRASSMENT’ CHARGE In her October 28 brief, Axanar attorney Erin Ranahan criticized the plaintiffs’ description of the reason why the defense opposed removing the “attorneys eyes only” designation from Axanar’s financial summary. She wrote, “Plaintiffs’ assertion that Defendants’ designation is based on “embarrassment” is utterly false and ignores the actual reasons.”9)

When she emailed studio attorney David Grossman on the topic she described the reason this way: “Given the sensitivities with donors, which has stemmed largely from the delay that this lawsuit has caused, there is serious harm that is threatened to Defendants if these preliminary documents were shared with and misused by those that have a personal vendetta to destroy Alec’s lifelong fanhood, finances, reputation, and dreams of creating Axanar.”10)

However, her description of the financial information she gave the plaintiffs differed from the studios’ description in their motion. Ranahan described it this way:

“Certain highly sensitive financial information consisting of thousands of pages of Alec Peters’ Quicken financial notes about expenditures. … Contrary to Plaintiffs’ representation in their Ex Parte Application, these notes were not prepared by an accountant, but were notes by Alec Peters. This information is currently being reviewed by an accountant. As Defendants have explained, these were preliminary notes from Quicken and were not a final accounting, which is still being prepared.

The plaintiffs had described the documents as:

… a financial summary prepared by [Peters’] accountant. … This document shows the amounts and dates on which Mr. Peters paid himself and his colleagues, and paid for his personal expenses with funds from Star Trek fans.11)

Peters' and Attorney's Accounts Contradict

Contrary to Ranahan’s description, as recently as October 29, Peters himself characterized the financial information this way:

The financials are complete and have been reviewed by an accountant and show me not having taken one dollar from Axanar over the TWO AND A HALF YEARS I have worked full time on this project. Every dollar donated is accounted for.12)

And in the 40th episode of the official Axanar podcast he also claimed an accountant had completed a detailed financial audit covering the past two years. “Here’s every dollar that we spent,” Peters said, adding “CBS has it” for the lawsuit.13)

In any case, Ranahan said she planned to seek to exclude Axanar’s financials from being entered as evidence at trial.

Allegation Plaintiffs Revealed Confidential Information

Ranahan attributed part of her reason for resisting removing the financials’ status as “attorneys eyes only” because the plaintiffs had proved “careless and disregarded confidentiality agreements in this case on several occasions.”14)

Revealed Settlement Talks

Despite a prior agreement between the parties that settlement discussions should remain confidential, Ranahan alleged, “Plaintiffs made a public announcement about these ongoing discussions.”15)

Ranahan presumably referred to a statement issued by CBS and Paramount on May 20, 2016, following the announcement by J.J. Abrams that “within the next few weeks” it would be announced the lawsuit would be “going away.” The studios announced that evening, “We are pleased to confirm we are in settlement discussions.”16)

SETTLEMENT TALKS by studio and Axanar attorneys in May were supposed to be confidential but defense lawyer Erin Ranahan said CBS and Paramount breached that agreement by announcing, after J.J. Abrams and Justin Lin spoke in support of fan films, that negotiations were in progress.
Sharing Confidential Information

Ranhan alleged the plaintiffs had allowed “a non-attorney to view an ‘attorneys eyes only’ document during a deposition, referring to a document shown to CBS vice president John Van Citters during Peters’ October 19 deposition.17)

She also claimed plaintiffs had described Axanar’s confidential financial documents “in various pleadings without redacting or seeking to file this information under seal. This presumably referred to the plaintiffs describing the “commercial nature of [Axanar’s] endeavor” as part of the Joint Stipulation attached to the defense motion to compel discovery from the plaintiffs.18)

Ranahan’s brief also asserted that despite their agreement to treat all deposition testimony as confidential, the plaintiffs had cited such testimony in their emergency notion.19)

In that motion attorney Jason referred to testimony and documents submitted by Prelude director Gossett during his October 22 deposition. That testimony was what prompted the emergency motion.

Third-Party Leaks

Ranahan also lodged a mysterious criticism of opposing counsel’s “frequent contact with individuals who have made clear that it is their goal to leak Axanar and Mr. Peters’ confidential information.”20)

A day before Ranahan complained in an email about “serious harm … if these preliminary documents were shared with and misused by those that have a personal vendetta to destroy Alec’s lifelong fanhood, finances, reputation, and dreams of creating Axanar. This includes not only Plaintiffs, but third parties who have had extensive discussions with Plaintiffs and seek to leak information deemed confidential in the lawsuit in an effort to bring down Alec.21)

While Ranahan herself did not specify who these third parties were and what information had been leaked to them, both Peters and his surrogate blogger, Jonathan Lane of Fan Film Factor, named AxaMonitor, which had reported on Twitter on October 24 that undisclosed emails had been discovered involving Peters and Axanar director Robert Meyer Burnett.

Peters, Lane Name Name

Peters posted on Facebook on October 25, “Well, we do know [AxaMonitor editor] Pedraza is working for CBS & Paramount’s lawyers. … Carlos has never said one positive thing about Axanar. He is the worst kind of liar. He pretends to be impartial.”22)

In his reaction to the plaintiffs’ emergency motion, blogger Lane noted:

OUR REPLY
I don’t often write in the first person in a news article, but I wanted to point out that I didn’t describe my work as “hard-hitting reporting”; I wrote, “We got our information the old-fashioned way: feet-on-the-beat reporting.” In the years I was a full-time reporter I spent a lot of time covering cops and courts; I learned how to get information. It’s too bad the defense plans to pursue sanctions; they’ll end up embarrassed and disappointed.

— Carlos Pedraza,
AxaMonitor editor

I’ve noticed a certain cavalier, almost smug, attitude among some Axanar detractors about disseminating privileged information as though this were some kind of Wikileaks dump of stolen Clinton data. Carlos Pedraza even went so far as to call his efforts “hard-hitting reporting” (implying that my efforts aren’t). …

The more Carlos Pedraza and others report on privileged “inside information” from this case, the more they put the studios at risk because that information has to be coming from somewhere — and it’s certainly not the defense! And anyone who is leaking privileged information is quite possibly damaging the chances in the case for the plaintiffs. Sanctions have now been requested by the defense.23)


Keywords

1)
Plaintiffs’ Ex Parte Application for Order,, p. 2, 10/27/16.
2)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 12, 10/27/16.
3) , 4)
Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, p. 1, 10/28/16.
5)
Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, p. 2, 10/28/16.
6) , 10) , 17) , 21)
Erin Ranahan email to David Grossman, 10/27/16.
7)
Alec Peters, Captain’s Log – April 29, 2015, Axanar Productions website, 5/30/15.
8)
Alec Peters, Captain’s Log – Dec 9th, 2015, Axanar Productions website, 12/11/16.
9) , 14) , 15) , 19)
Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, p. 7, 10/28/16.
11)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 7, 10/27/16.
18)
“Discovery Motion, Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs,” p. 4, 9/29/16.
20)
Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, pp. 7-8, 10/28/16.