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discovery_order [2016/10/21 20:40] – [Producing Witnesses] adds abrams-lin photo Carlos Pedrazadiscovery_order [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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-====== Court Orders Studios to Turn Over Documents to Defense ======+<wrap lo>//Photo/Takashi Toyooka//</wrap></WRAP> 
 +====== Court Orders Studios to Turn Over Documents ======
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 //**__ __ **// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]]**</wrap> //**__ __ **// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]]**</wrap>
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 +
 +<wrap lo>//See also: [[compel_discovery|Motion to Compel Discovery]]//</wrap>
  
 In a decision issued just hours after a hearing, [[federal_magistrate_judge_charles_f._eick|Federal Magistrate Judge Charles F. Eick]] ordered CBS and Paramount to give Axanar's attorneys documents the studios had so far resisted turning over in [[discovery]]. In a decision issued just hours after a hearing, [[federal_magistrate_judge_charles_f._eick|Federal Magistrate Judge Charles F. Eick]] ordered CBS and Paramount to give Axanar's attorneys documents the studios had so far resisted turning over in [[discovery]].
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 In his order issued October 21 Eick told the studios' attorneys they must accede to a number of the requests for documents made by the defendants in a recent [[compel_discovery|Motion to Compel Discovery]]. He gave the studios an October 28 deadline to comply; the deadline for completing discovery was November 2. In his order issued October 21 Eick told the studios' attorneys they must accede to a number of the requests for documents made by the defendants in a recent [[compel_discovery|Motion to Compel Discovery]]. He gave the studios an October 28 deadline to comply; the deadline for completing discovery was November 2.
  
-On Twitter, Axanar producer [[Alec Peters]], a named defendant, called the order "a big win in court today." His surrogate's blog, [[http://fff.trekbloggers.com/2016/10/21/breaking-news-magistrate-judge-rules-in-axanars-favor-regarding-discovery/|Fan Film Factor]], summed it this way:+On Twitter, Axanar producer [[Alec Peters]], a named defendant, called the order "a big win in court today." His surrogate's blog, [[http://fff.trekbloggers.com/2016/10/21/breaking-news-magistrate-judge-rules-in-axanars-favor-regarding-discovery/|Fan Film Factor]], summed it up like this: 
 + 
 +<WRAP right round download 50%> 
 +<wrap lo><wrap em>DOWNLOAD</wrap> Judge Eick's [[driv>0BzmetJxi-p0VaG9EeFBrWW1KWU0|order on the defense motion]] to compel discovery. Also: Defense attorney [[Erin Ranahan]]'s request [[driv>0BzmetJxi-p0VTWcta2pzSHpFWUk|for a transcript]] of the October 21 hearing on the motion.</wrap> 
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 > "Axanar got pretty much everything they wanted and the studios are going to have a //very// busy week ahead. … [It's] a big win for Axanar during the discovery phase.  The actual trial is completely separate, but for right now, the defense is going to have a very happy weekend."(([[http://fff.trekbloggers.com/2016/10/21/breaking-news-magistrate-judge-rules-in-axanars-favor-regarding-discovery/|"Breaking news!!! Magistrate Judge rules in AXANAR’s favor regarding discovery!" Jonathan Lane, Fan Film Factor]], 10/21/16.)) > "Axanar got pretty much everything they wanted and the studios are going to have a //very// busy week ahead. … [It's] a big win for Axanar during the discovery phase.  The actual trial is completely separate, but for right now, the defense is going to have a very happy weekend."(([[http://fff.trekbloggers.com/2016/10/21/breaking-news-magistrate-judge-rules-in-axanars-favor-regarding-discovery/|"Breaking news!!! Magistrate Judge rules in AXANAR’s favor regarding discovery!" Jonathan Lane, Fan Film Factor]], 10/21/16.))
  
 However, with the exceptions in discovery requests listed below, the order officially denied the defense motion to compel discovery.((Judge Eick wrote: "Except as expressly stated herein, the Motion is denied.")) However, with the exceptions in discovery requests listed below, the order officially denied the defense motion to compel discovery.((Judge Eick wrote: "Except as expressly stated herein, the Motion is denied."))
- 
---> Read the Full Text of the Court Order# 
-<wrap lo>The Court has read and considered all papers filed in support of and in opposition to "Defendants' Motion to Compel Discovery from Plaintiffs" ("the Motion"), filed September 29, 2016. The Court heard oral argument on October 21, 2016. \\ 
-\\ 
-Defendants have withdrawn the Motion as to those matters subsumed under "Issue 3." See "Defendants' Supplemental Memorandum, etc.," filed October 7, 2016, at p. 5; see also "Joint Stipulation, etc.," filed September 29, 2016, at pp. 51-58. \\ 
-\\ 
-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. \\ 
-\\ 
-Any party seeking review of this Order shall cause the preparation and filing of a transcript of the October 21, 2016 hearing. \\ 
-\\ 
-//Hon. Charles F. Eick, Judge//</wrap> 
-\\ 
-\\ 
-<-- 
  
 ===== Withdrawals and Exemptions ===== ===== Withdrawals and Exemptions =====
 +
 +The judge's order formally noted what was reported last week that Axanar's attorneys had withdrawn the part of the motion challenging the [[supplemental_discovery|studios' chain of title]] to the ownership of Star Trek's copyrights, as well as the defense's complaint that plaintiffs' attorneys had mischaracterized when the parties had met to confer about discovery.
  
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 <wrap lo>**ATTORNEY-CLIENT PRIVILEGE** allows a client to prevent disclosure of confidential communications between client and attorney. It is one of the oldest recognized privileges for confidential communications, intended to encourage clients to make full disclosures to their attorneys, who are then better able to provide candid advice and effective representation.(([[https://en.wikipedia.org/wiki/Attorney–client_privilege|Wikipedia, "Attorney-client privilege"]]. retrieved 10/21/16.))</wrap> <wrap lo>**ATTORNEY-CLIENT PRIVILEGE** allows a client to prevent disclosure of confidential communications between client and attorney. It is one of the oldest recognized privileges for confidential communications, intended to encourage clients to make full disclosures to their attorneys, who are then better able to provide candid advice and effective representation.(([[https://en.wikipedia.org/wiki/Attorney–client_privilege|Wikipedia, "Attorney-client privilege"]]. retrieved 10/21/16.))</wrap>
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-The judge's order formally noted what was reported last week that Axanar's attorneys had withdrawn the part of the motion challenging the [[supplemental_discovery|studios' chain of title]] to the ownership of Star Trek's copyrights, as well as the defense's complaint that plaintiffs' attorneys had mischaracterized when the parties had met to confer about discovery. 
  
 The order exempted the required studio documents covered under attorney-client privilege but rejected the plaintiffs' general objection that the defense requests were "overbroad, unduly burdensome" and that the records being sought "are not relevant to any party's claim or defense."((“Discovery Motion, Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs,” p. 31, 9/29/16.)) The order exempted the required studio documents covered under attorney-client privilege but rejected the plaintiffs' general objection that the defense requests were "overbroad, unduly burdensome" and that the records being sought "are not relevant to any party's claim or defense."((“Discovery Motion, Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs,” p. 31, 9/29/16.))
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 Eick also required CBS and Paramount to produce the following documents, but only affecting the time period since 2009. Eick also required CBS and Paramount to produce the following documents, but only affecting the time period since 2009.
  
-  * All non-privileged documents relating to Star Trek fan films, but only since 2009, the year the rebooted //Star Trek// motion picture, produced by J.J. Abrams, was released. Defendants had sought documents prior to 2009. <WRAP right round info 50%><wrap lo>**EXEMPT DOCUMENTS** It should be noted that a large number of documents sought by the defense about legal action against fan films are likely to be covered by attorney-client privilege.</wrap></WRAP> +  * **Fan Films Since 2009** All non-privileged documents relating to Star Trek fan films, but only since 2009, the year the rebooted //Star Trek// motion picture, produced by J.J. Abrams, was released. Defendants had sought documents prior to 2009. <WRAP right round info 50%><wrap lo>**EXEMPT DOCUMENTS** It should be noted that a large number of documents sought by the defense about legal action against fan films are likely to be covered by attorney-client privilege.</wrap></WRAP> 
-  * Documents referring to the studios' decision whether to pursue legal action against fan productions, including takedown notices on platforms like YouTube, cease and desist letters (C&Ds), and legal complaints with respect to a long list of fan films [[compel_discovery#other_fan_films|enumerated in the motion]]. Eick's order limited the required documents to only those since 2009 not covered by privilege. <WRAP right round info 50%>+  * **Legal Action Against Fan Films** Documents referring to the studios' decision whether to pursue legal action against fan productions, including takedown notices on platforms like YouTube, cease and desist letters (C&Ds), and legal complaints with respect to a long list of fan films [[compel_discovery#other_fan_films|enumerated in the motion]]. Eick's order limited the required documents to only those since 2009 not covered by privilege. <WRAP right round info 50%>
 <wrap lo>**VULCAN SCENE** No takedown order was ever issued by the studios for //Prelude// or the Vulcan Scene. Axanar itself voluntarily took down the Vulcan Scene, and then, ironically, issued takedown orders claiming copyright infringement when copies of the scene were posted by others. That order was successfully challenged and the [[yout>zThnJgj-k1Q|Vulcan Scene]] remained on YouTube.</wrap> <wrap lo>**VULCAN SCENE** No takedown order was ever issued by the studios for //Prelude// or the Vulcan Scene. Axanar itself voluntarily took down the Vulcan Scene, and then, ironically, issued takedown orders claiming copyright infringement when copies of the scene were posted by others. That order was successfully challenged and the [[yout>zThnJgj-k1Q|Vulcan Scene]] remained on YouTube.</wrap>
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-  * Documents and communications about whether the studios contemplated sending a [[wp>Online_Copyright_Infringement_Liability_Limitation_Act|DMCA takedown notice]] to YouTube or other online hosts regarding the short film, //[[Prelude to Axanar]]// or the so-called “[[locked_script#talky|Vulcan Scene]].” Eick's order limiting the documents to those not covered by attorney-client privilege would apply to these documents as well. +  * **Axanar Takedown Notices** Documents and communications about whether the studios contemplated sending a [[wp>Online_Copyright_Infringement_Liability_Limitation_Act|DMCA takedown notice]] to YouTube or other online hosts regarding the short film, //[[Prelude to Axanar]]// or the so-called “[[locked_script#talky|Vulcan Scene]].” Eick's order limiting the documents to those not covered by attorney-client privilege would apply to these documents as well. 
-  * Documents related to any [[cbs_guidelines|fan film guidelines]] considered by the studios, including research, analysis, or communications. To the extent such documents involved legal issues, attorney-client privilege could well apply here, too.+  * **Fan Film Guidelines** Documents related to any [[cbs_guidelines|fan film guidelines]] considered by the studios, including research, analysis, or communications. To the extent such documents involved legal issues, attorney-client privilege could well apply here, too.
  
 === J.J. Abrams and Justin Lin === === J.J. Abrams and Justin Lin ===
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 However, as with the other documents, the court order exempted documents covered by attorney-client privilege, which is what the plaintiffs largely claimed explained their refusal to provide the documents in the first place. Given the plaintiffs' assertion that documents on this topic were privileged under the "[[supplemental_discovery#common_interest_privilege|common interest]]" doctrine, this part of the discovery motion could continue to be disputed. However, as with the other documents, the court order exempted documents covered by attorney-client privilege, which is what the plaintiffs largely claimed explained their refusal to provide the documents in the first place. Given the plaintiffs' assertion that documents on this topic were privileged under the "[[supplemental_discovery#common_interest_privilege|common interest]]" doctrine, this part of the discovery motion could continue to be disputed.
  
-==== Describing Harm ====+==== Harm and Injury ====
  
 Eick also ordered the plaintiffs to provide written responses to questions posed by the defendants regarding: Eick also ordered the plaintiffs to provide written responses to questions posed by the defendants regarding:
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   * **DAMAGES** A computation of the damages claimed for each cause of action in the lawsuit.   * **DAMAGES** A computation of the damages claimed for each cause of action in the lawsuit.
  
 +=== Actual vs. Statutory Damages ===
 +
 +Under copyright law, however, the studios can elect to specify the basis on which they want to calculate damages against Axanar. Plaintiffs can opt for either actual damages caused by the alleged infringement, which would be supported by the kinds of records the defense was seeking in discovery, or statutory damages of $150,000 per instance of infringement.
 ==== Producing Witnesses ==== ==== Producing Witnesses ====
  
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 ===== What the Judge Denied ===== ===== What the Judge Denied =====
 +
 +[{{ ::star-wars-fanfilms.jpg?300|**NO STAR WARS**-related documents or communications between CBS/Paramount and Lucasfilm were granted to Axanar as part of the court order. Lucasfilm has its own [[trek_wars_guidelines|policies regarding fanfilms]] entered in its annual contest, but not on films outside the contest.}}]
  
 Despite what the defense successfully gained by the order, the judge turned down several of their requests: Despite what the defense successfully gained by the order, the judge turned down several of their requests:
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 ==== Stance Toward Other Fan Films ==== ==== Stance Toward Other Fan Films ====
  
-CBS and Paramount had argued that Axanar had "failed to establish how [their] pursuit or lack of pursuit of legal action against other potentially infringing works is relevant, and have not provided any authority that supports their position.((“Discovery Motion, Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs,” p. 44, 9/29/16.)) {{:axamonitor-ico.gif?nolink|}}+In resisting the broader requests regarding their takedown policies, CBS and Paramount had argued that Axanar had "failed to establish how [the studios'] pursuit or lack of pursuit of legal action against other potentially infringing works is relevant, and have not provided any authority that supports their position.((“Discovery Motion, Joint Stipulation Regarding Defendants’ Motion to Compel Discovery from Plaintiffs,” p. 44, 9/29/16.)) {{:axamonitor-ico.gif?nolink|}}
  
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 **Keywords** {{tag>lawsuit parties defendants plaintiffs}} **Keywords** {{tag>lawsuit parties defendants plaintiffs}}