Former Axanar Officer Served with Subpoena

See also: ‘Prelude’ Director's Deposition Postponed

Axanar’s former chief technologist, Terry McIntosh, was served with a subpoena on Friday, September 2, 2016, on behalf of the plaintiffs, CBS and Paramount Pictures, in their copyright infringement lawsuit against the fan production and its leader, Alec Peters.

“Was just served with a deposition subpoena for Axanar,” McIntosh announced on Facebook, adding that he was unwilling to travel at his own expense, nor lose time from his job, to respond to the plaintiffs’ summons:

I’m not travelling across several states and paying for hotel and car at my expense. That’s non-negotiable. I’ll call them on Monday and see if they want my participation or not… if they’re smart they’ll choose the willing witness route and not an adversarial route.1)

UPDATE on McIntosh’s Deposition
**Terry McIntosh**. Former Axanar CTO Terry McIntosh said he requested his deposition date be rescheduled again to October 28 in Seattle: “Since I’m rather looking forward to participating in the process, and have already collected the majority of the requested materials that I’ll be submitting for review — over 3TB worth, so far, and I’m still gathering — this makes things more manageable.” 2)

Indeed, the Federal Rules of Civil Procedure state a person served with a subpoena cannot be compelled to appear at a deposition if it takes place further than 100 miles from where he or she resides, is employed, or regularly transacts business in person.3)

Terms of the Subpoena

By all accounts, the subpoena does not specifically state why the plaintiffs want to depose McIntosh, but sources familiar with the inner workings of Axanar told AxaMonitor that the former chief technology officer was privy to many of the production’s revenue operations, especially donations, shipping, donor information systems and e-commerce sales from the Donor Store.

« If they’re talking to Terry, then the revenue matters. »Source familiar with Axanar’s operations

“If they’re talking to Terry, then the revenue matters,” one source said.

Who Would be Present

It’s more likely, according to attorneys consulted by AxaMonitor, that McIntosh would be deposed in the Seattle area, where McIntosh lives and works, led by at least one attorney from the law firm, Loeb & Loeb, representing CBS and Paramount. Loeb could conceivably conduct its deposition by phone or other remote means.

Also likely to be present would be a representative from the firm representing Axanar and producer Peters, Winston & Strawn. The role of the Winston attorney would be to raise objections to limit what information McIntosh might otherwise be compelled to provide. Axanar’s attorneys might also file motions in court based on what is divulged by McIntosh, who resigned in May 2016.

Self-Incrimination

McIntosh himself is entitled (but not required) to be represented by counsel at the deposition, most likely to help him avoid making any self-incriminating statements.

MAKEUP ARTIST Michael Spatola is among the creative contributors to Axanar in whom CBS and Paramount’s subpoena demonstrates interest. Photo/Cinema Makeup School

Since his resignation, McIntosh has emerged as a vocal critic of Axanar, disclosing communications with Peters that, among other things, indicated that Axanar has run out of cash. For their part, Axanar surrogates have claimed that McIntosh extorted the production company by stealing data it needed for shipping to its donors and customers of its online Donors’ Store.

Persons of Interest

According to McIntosh, the subpoena indicates the plaintiffs want to see a comprehensive amount of information he may possess, including all his communications with:

  • Peters, Axanar’s producer and the only named defendant apart from his company, Axanar Productions.
  • Robert Meyer Burnett, putative director of the feature film, Axanar, and editor of the short, Prelude to Axanar.
  • Christian Gossett, director of Prelude to Axanar, who resigned from directing the feature film in May 2015. Gossett has since become publicly critical of Peters’ management of money raised from Axanar’s various crowdfunding campaigns.
  • Alexander Bornstein, composer of the score for Prelude to Axanar, the CD for which is sold in Axanar’s Donor Store.
  • Bing Bailey, digital imaging technician and colorist for Prelude to Axanar.
  • Diana Kingsbury, associate producer and fulfillment director (responsible for shipping Axanar merchandise).
  • Michael Spatola, makeup artist and head of the Cinema Makeup School. Peters described him as “a two-time Emmy nominee and a huge Star Trek fan.”4) Spatola was due to head the makeup team on Axanar.
  • Adam Howard, the on-set visual effects supervisor for Prelude, and a visual effects artist whose previous work includes Star Trek: The Next Generation and a wide variety of TV shows and films, including the Oscar-winning Birdman.

Other Subpoena Targets

McIntosh said he believed the appearance of those specific names on his subpoena “means they’re likely on the subpoena list, too.”5)

THE AXANAR script, once described as locked, is the subject of the studios’ allegations of copyright infringement by producer Alec Peters (center) and others, including putative director Robert Burnett (right). Read our review.

Infringing Activities

The involvement of the above people conforms to allegations made by the plaintiffs in their legal complaint against Axanar regarding the production’s copyright infringement activities in such areas as:

  • Writing scripts
  • Producing or directing the infringing films
  • Design or oversight of design of:
    • Sets
    • Costumes
    • Props
    • Makeup
  • Other elements in works derived from Star Trek’s copyright.6) This may include merchandise Axanar sells in its Donor Store.

Deposition Costs

In-person depositions are a particularly costly part of the discovery process, involving expenses for travel for all the attorneys involved and any necessary support staff, local court reporting system costs — itself costing at least $1,000 a day — and transcriptions from the video recording of the deposition.


Keywords

3)
Rule 45, Subpoena, Federal Rules of Civil Procedure, Legal Information Institute, Cornell University Law School, retrieved 9/2/16.
4)
Alec Peters, Captain's Log, Axanar Productions website, 5/7/16.
6)
Paramount/CBS v. Axanar et al., amended complaint, p. 8 ¶35, 3/11/16.