CLOAKING A Romulan vessel hides by engaging its cloaking device. Image/Star Trek Online

Axanar Seeks to Exclude Major Evidence, Witnesses

See also: Judge Rules on Excluding Evidence and Peters' Personal Spending Spurs Axanar Accounting

Attorneys filed motions December 16, 2016, seeking to exclude evidence from Axanar’s upcoming copyright infringement trial. The defense, as expected, challenged the admissibility of defendant Alec Peters’ damning financial records, and sought to disallow testimony from Prelude director Christian Gossett and former chief technologist Terry McIntosh, citing their “personal drama” and “smear campaign” against Peters.

Meanwhile, the plaintiffs sought to exclude testimony from Star Trek directors J.J. Abrams and Justin Lin.

DEADLINE Attorneys for both sides asked the court to keep certain evidence away from the jury.

December 16 was designated by federal Judge R. Gary Klausner as the deadline for attorneys for both Axanar and the studios suing Peters to submit motions to exclude evidence from the upcoming trial.

Evidence to Keep from Jury

Among the motions filed, the parties sought to exclude the following evidence:

  • FINANCIALS Plaintiffs CBS and Paramount Pictures wanted to exclude the financial statements for Axanar that Peters had altered to delete personal expenses included in an earlier set of records.
  • SCRIPTS The studios wanted to exclude scripts Peters had revised after the lawsuit was filed in December 2016, as well as excluding testimony from witnesses discussing those scripts.
  • ABRAMS AND LIN CBS and Paramount sought to exclude all testimony and public statements made by Star Trek producer J.J. Abrams and director Justin Lin.
  • FAN FILM BLOGGER The studios also wanted to disallow testimony from Axanar surrogate Jonathan Lane as an expert witness on fan films. Lane publishes the pro-Axanar Fan Film Factor blog.
    MORE INFRINGEMENT CBS claims Axanar infringes on the character portrayed in the 2003 Star Trek novel, “Garth of Izar.”
  • FAN FILMS Paramount and CBS also wanted to exclude testimony and documents regarding Star Trek fan films, particularly the the fan film guidelines because they contend Axanar by its own admission was a fully professional, independent Star Trek film project, not a fan film.
  • GARTH NOVEL, ROLE-PLAYING GAME Axanar wanted to prevent the studios from claiming copyright infringement on any Star Trek works not identified in the plaintiffs’ actual legal complaint, including the Star Trek Role Playing Game Peters has always pointed to as an important source for Axanar, and the 2003 novel, “Garth of Izar,” which features the same protagonist as that portrayed in Axanar.
  • PERSONAL DRAMA Citing ““evidence concerning personal drama, smear campaign, and other irrelevant communications” — specifically naming former staff, director Gossett and CTO McIntosh — Axanar wanted all their testimony disallowed.
  • MORE SCRIPTS Axanar wanted to “preclude plaintiffs from referring to irrelevant superseded scripts,” meaning the “fully revised and locked” 2015 script on which Peters premised his crowdfunding campaign.
  • MORE FINANCIALS The defense also asked the court to disallow any mention of the financial information of “certain defendants,” presumably Peters, his former girlfriend Diana Kingsbury and others the plaintiffs claimed financially benefitted from Axanar.
  • THE NAME ‘STAR TREK’ Axanar wanted to exclude any evidence “regarding defendants’ use of the name ‘Star Trek,’” in fact largely asking the court to prevent introduction of specific Star Trek elements such as Vulcans, Klingons, the command insignia, Starfleet, the starship Enterprise, Romulans, Tellarites, Andorians and characters like Garth of Izar, Vulcan ambassador Soval, Captain Richard Robau, historian John Gill, Spock’s father Sarek, among others, claiming they are not protected by copyright.
    SOURCEBOOK “The Four Years War,” a game sourcebook published by FASA under a license from Paramount Pictures in 1986 was the inspiration for Alec Peters’ story in the Axanar film.
  • EXPERT FINANCIAL WITNESS The studios wanted to exclude the testimony of Axanar’s expert financial witness, certified public accountant Christian Tregillis.
  • AXANAR’S QUALITY Axanar also asked plaintiffs be prevented from referring to “the quality of defendants’ works”
  • EXPERT MEDIA WITNESS CBS and Paramount sought to exclude expert testimony of academic Henry Jenkins, a professor at the University of Southern California, who has argued that fan works deserve protection under copyright law’s fair use provisions.

How Evidence was Gathered

Both sides gathered a great deal of potential evidence as part of the discovery process in the case, some of which has already been submitted to the court as part of both sides’ request from the judge to issue a summary judgment in their favor to avoid or limit the scope of the trial scheduled to begin January 31, 2017.

Under terms of a protective order, both sides designated certain sensitive information as confidential, keeping it from public view in court filings to date. But with the January trial date looming attorneys were expected seek to exclude potentially damaging evidence they would argue was irrelevant to the case.

« These documents lack any relevance to this case. … Defendants fully intend to seek to exclude these expenditures before trial. »Axanar attorney Erin Ranahan

Axanar's Financials

In its motion for partial summary judgment, plaintiffs CBS and Paramount Pictures asserted Peters and his colleagues collected and spent more than $1.4 million raised from Star Trek fans to pay themselves, actors, and crew members, while renting out a studio (which Peters is operating as a commercial enterprise), to pay “tens of thousands of dollars of restaurant bills, to pay their phone bills, gas, insurance, and to travel around the country as the ‘producers’ of Star Trek: Axanar.”1)

The studios’ claims were based on financial records Peters himself had furnished. Most references in pleadings so far filed with the court were redacted based on objections by Axanar’s pro bono attorney, Erin Ranahan of Winston & Strawn. The studios’ attorneys argued Ranahan designated the records confidential to avoid embarrassing Peters rather than out of a legitimate need to avoid public disclosure of trade secrets or proprietary information, particularly given the defense claim Axanar was merely a fan film rather than a professional enterprise.

Ranahan denied the two different sets of financial records Peters turned over were embarrassing, but rather, simply irrelevant:

AXANAR’S BROKE A report by Axanar’s own expert witness confirms producer Alec Peters had spent all the production’s money. His supposed $150,000 reimbursement didn’t appear as income in the report.Click image to view full size.
Despite Defendants’ position that these documents lack any relevance to this case, Defendants produced the financial information they had available at the time in an effort to be cooperative and avoid wasting the Court’s time on discovery disputes. Defendants fully intend to seek to exclude these expenditures before trial.2)

Axanar Goes on the Defensive

Notwithstanding Ranahan’s protestations, Peters’ public relations team sought to downplay what had so far been made public about his alleged mismanagement of the funds that were intended to produce the Axanar film. According to the defense’s own expert financial witness all that money is gone;3) the promised film was never produced.

See also: Axanar's Money is Gone and Peters' Personal Spending Spurs Axanar Accounting

Following those public revelations, Peters’ public relations machine went into high gear to deflect the attendant calls for where the $1.4 million he raised to produce Axanar had gone by focusing on $150,000 Peters supposedly paid back to the production, allegedly offsetting the personal expenses and salary he paid himself.

However, Peters continued to avoid producing records substantiating the $150,000 claim; indeed, his expert witnesses financial statement failed to show income coming from Peters himself.

The Transparency Selling Point

Indeed, Peters’ once touted alleged transparency about Axanar’s finances as a reason for Star Trek fans to give him money to produce Axanar. In 2014, for example, Peters answered one critic’s questions about accountability like this:

Anyone who wants to see my financials or receipts because he doubts the numbers we publish is more than welcome to do so. If you knew anything about the movie business, you could tell that the numbers are pretty damn good. Of course, I will then expect a full public statement by you about their accuracy and you can buy me dinner and drinks for wasting my time with your conspiracy theory. And do tell me what other Kickstarter movie published THEIR numbers? So you already are getting more transparency than any other Kickstarter that I know of.4)
Downloadable trial schedule.

What Happens Next?

See also: Timeline of the Case

The December 16 motions to exclude evidence begin a new round of pleadings, with attorneys expected to file their objections to opposing counsel’s motion by January 5. By January 21, each side would get an opportunity to reply to the other’s objections.

The judge was expected to rule on the admissibility of evidence by the time the trial was slated to begin January 31.


Keywords

1)
Motion for Partial Summary Judgment, Section 3, Part C, p. 13, 11/16/16.
2)
Defendants’ Opposition to Plaintiffs’ Ex Parte Application for Order, p. 7, 10/28/16.
3)
Expert Report of Christian Tregillis, CPA, ABV, CFF, CLP, Hemming Morse, LLP, p. 15, 12/5/16.