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Plaintiffs: Peters Withheld Trove of Email

Defense Resists Releasing Axanar’s ‘Embarrassing’ Records of Spending Donor Funds

In a flurry of documents filed in court on October 27, attorneys for CBS and Paramount castigated the defense for refusing a second deposition of Alec Peters after confirming AxaMonitor‘s report the Axanar producer withheld documents subpoenaed in the copyright suit he faces.

In a 19-page request to federal magistrate Charles Eick, the studios’ attorney, Jennifer Jason, also asked Eick to remove the “highly confidential” designation of Axanar’s financial summary after the defense argued that “public disclosure of the ways in which Mr. Peters spent funds from Star Trek fans could cause embarrassment for [him].”1)

See also: Court Grants Studios' Request for Axanar Financials, Defense Opposes Motion

Following Peters’ disclosure in his own October 19 deposition, the plaintiffs also sought a log of privileged communications between Peters and his former legal counsel prior to the filing of the copyright infringement lawsuit in December 2015, about which current attorney, Erin Ranahan, had previously stated, “We are not withholding anything from before the lawsuit was filed as privileged.”2)

DOWNLOAD CBS and Paramount’s request for a court order (PDF) responding to revelations Axanar producer Alec Peters and director Robert Burnett withheld hundreds of emails, texts and social media postings. All the related exhibits and pleadings are in our legal document repository.

The court filings confirmed AxaMonitor‘s report earlier in the week that, despite winning a court order compelling plaintiffs to provide records, the defendants had run into their own discovery trouble, particularly with emails.

In a related development, an exhibit in the filing had Ranahan publicly confirming that Star Trek producer J.J. Abrams and director Justin Lin were scheduled to be deposed in the case after they got involved in the case several months before.

AxaMonitor unsuccessfully attempted to contact Axanar’s spokesman for comment on the allegations late Thursday night.

DEPOSITIONS were scheduled for Star Trek producer J.J. Abrams and director Justin Lin after they got involved in the Axanar case.

Discovering the Missing Emails

According to Jason’s court statement, the missing emails came up in the course of the October 22 deposition of Prelude to Axanar director Christian Gossett, in which it became plain Peters engaged in discussions about the production of the Axanar works that had not been disclosed:

Gossett produced thousands of pages of documents, which included hundreds of emails between himself and Mr. Peters. These emails were not produced by Mr. Peters, who hardly produced any emails between himself and his creative collaborators.3)

In an October 26 email to Ranahan, Grossman described Peters’ the missing emails as “improperly withheld … emails that go to the heart of the claims in this case.”4)

Prelude director Christian Gossett‘s deposition revealed at least hundreds of emails that appeared to have been withheld by Alec Peters.

‘Prelude’ Director Christian Gossett

Gossett resigned from Axanar in May 2015 amid concerns about Peters’ spending of donor funds and management of the project that he detailed in an interview with the G&T Show. Robert Meyer Burnett, the editor of Prelude, was named director of the feature, Axanar, shortly thereafter.

Deposing Peters Again

Jason’s court statement asked the federal magistrate to order Peters to appear at a second deposition after his attorney refused to allow it. She quoted the declaration made by her fellow attorney David Grossman:

The day prior to his deposition, Mr. Gossett produced thousands of pages of documents, including hundreds of emails between himself and Mr. Peters (as well as other source documents showing the material that was used to create the Axanar Works). … The majority of these documents were communications between Mr. Gossett and Alec Peters. …. Virtually none of these documents were produced by Mr. Peters.5)

This contradicted testimony provided by Peters in his deposition:

Mr. Peters produced emails from that same email account, from the same time period, and he also testified that he did not delete substantive emails with Mr. Gossett.6)
Axanar director Robert Meyer Burnett refused to turn over any emails or social media postings required by his subpoena.

Because of all this new information, the studios’ attorneys asked to depose Peters again. Ranahan refused another open-ended deposition, imposing a two-hour time limit and only on subjects related to additional, unknown records she promised to deliver. Jason told the judge Ranahan also refused to certify that Peters had turned over everything he was instructed to in his subpoena.

Burnett's Missing Emails, Social Media

Peters wasn’t the only deponent who withheld records stipulated to in his subpoena. Axanar director Burnett offered no emails between him and Peters and refused to supply the social media postings the subpoena had sought. Jason stated:

Mr. Burnett has not produced any documents or communications relating to his involvement with the Axanar project; Plaintiffs believe that the Court should order that Mr. Burnett and Mr. Peters certify that all responsive documents (including emails, social media and internet postings and text messages) have been produced.7)

Peters’ and Burnett’s social media postings were a particularly glaring omission given “their large social media presence.”8) Ranahan said those postings were all “publicly available.”9)

OTHER MISSING DOCUMENTS
Peters’ and Burnett’s emails weren’t the only documents plaintiffs complained the defense had not turned over. The others related to:
• The other owners, besides Peters, of Axanar Productions, Inc.
• Missing versions of the Axanar screenplay.
• Payments and contracts to third parties helping to produce Axanar.
• Peters’ plans for Axanar’s studio, now open as an ostensibly independent commercial business called Industry Studios (See “Twisted Path to Discover Axanar's Studio Ownership”).
Axanar‘s production schedules.
• Film cuts and sequences created for Axanar.
• Communications with actors.
• Communications with Axanar director Rob Burnett and fulfillment director Diana Kingsbury.
• Star Trek-copyright works used to create Axanar.
• Communications with YouTube and Kickstarter.
• Axanar’s commercial endeavors, particularly products manufactured for and sold by its Donor Store.
10)

Discovery Order

This new round of discovery disputes followed last week’s court order in which Axanar persuaded a judge to order CBS and Paramount to deliver to Axanar’s attorneys some records they had resisted handing over, including a fair amount of emails the defense complained to the judge it needed to make its case.

Earlier, Axanar’s surrogate blog, Fan Film Factor, gloated on October 25 that Peters had turned over 31,000 pages of documents to the plaintiffs’ attorney, contrasting that with the supposed non-responsiveness by the plaintiffs:

Axanar turned over pretty much everything the plaintiffs wanted … 31,000 pages of emails and documents. And that was probably enough to make the studios happy, as they did not request any additional documentation.11)

An October 26 email from Grossman to Ranahan made it clear the studios were far from happy, since those 31,000 records apparently did not include the hundreds of emails about the production of the Axanar works that were revealed in Gossett’s deposition.

Financial Disclosure

The plaintiffs’ new filing sought to have the court lift the “attorneys’ eyes only” or “highly confidential” designations that had been granted under a previous protective order to Axanar’s financial documents showing how Peters had spent the donations he raised from Star Trek fans.

Embarrassing Disclosures

That order provided that financial information could be held confidential in order to prevent release that could imperil the parties’ business competitiveness. As a self-designated fan film, Axanar had no competitiveness to protect, the plaintiffs asserted:

The only basis offered by Defendants’ counsel for the failure to de-designate this document is that is that the material in that document may embarrass Mr. Peters by showing the ways in which he spent funds that were raised from Star Trek fans. This is not a proper basis for designating a document as Highly Confidential and Plaintiffs request that the Court order this document de-designated.12)
SECRET DOCUMENT? Alec Peters failed to even provide the Axanar Annual Report in response to his subpoena, studio attorneys said.

Jason’s statement went on to discuss what Peters was afraid of disclosing outside of attorneys’ purview:

That Mr. Peters does not want to reveal the amounts that he paid to himself and his colleagues, or the amounts he spent on personal expenses, is not a sufficient basis for restricting access to that information.13)

The Need for Financial Records

Faced with the waning days of the court-designated period for discovery, the plaintiffs argued that their case would be harmed if they couldn’t discuss Axanar’s finances with two upcoming unnamed deposition witnesses.

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.14)

'Transparent and Accountable'

Jason argued Peters’ continued resistance to disclosure contradicted his public stance:

Mr. Peters previously disclosed, in a published report, the expenditures made on his first Star Trek film project, Prelude to Axanar. And in that financial disclosure document (which Mr. Peters inexplicably did not turn over in this lawsuit), Mr. Peters explained that: “[o]ne thing we at Axanar pride ourselves on is being the most transparent and accountable crowd-funded film out there.”15)

Privilege Log

Jason’s third request of the court was for a privilege log, a list of records the defense claimed are protected from disclosure by attorney-client privilege. Despite Ranahan’s earlier statement to the studios’ attorney that there were no privileged communications between Peters and legal counsel prior to the lawsuit, Peters confirmed in his deposition that he had, in fact, engaged and paid counsel in that time period. That was confirmed by Gossett in his deposition:

Mr. Gossett testified regarding documents that he produced (and Mr. Peters did not produce) showing that Mr. Peters had engaged counsel … to prepare agreements relating to the films, and other legal documents. … After [Ranahan’s] statement that no privilege communications existed prior to the filing of this lawsuit was proven incorrect, Plaintiffs requested that a privilege log be provided.16)

Revving Up the Spin Machine

Based on a tip from a source who spoke only on condition of anonymity, AxaMonitor had reported Axanar’s emerging discovery trouble in a tweet. Within a day, talking points were prepared and dispersed, starting with Peters’ favored blog for lawsuit news, Fan Film Factor, where Lane tried to address “the growing rumor that Alec Peters hadn’t turned over all his e-mails in discovery,” asking an anonymous lawyer “if that were something big and problematic.”17)

Sources tell us that #Axanar has its own discovery troubles: they haven't turned over all relevant emails re alleged #copyrightinfringement.
THE TWEET AxaMonitor’s October 24 tweet sparked invective on both sides of the Axanar controversy, but it was borne out by court documents three days later.

The Tweet

Both Lane and his anonymous source (dubbed “Legal Eagle”) assumed that missing emails were an issue raised at the October 21 discovery motion hearing and proceeded in an October 25 chat to dismiss the “rumor”:

LE: Were the alleged missing emails brought up in court?
JON: One was. At the end of his presentation, Jonathan Zavin mentioned that a few years ago, CBS had sent Alec Peters an email about fan films and it wasn’t in the e-mails he provided to them. …
LE: Why is that a problem? He probably deleted it. That email’s been gone for years. He didn’t have it to give them. JON: Well, I don’t know that for certain.
LE: Doesn’t matter. It’s not a big deal because they were the ones who sent it, so they already have it anyway.
JON: But this is the scandal du jour of the Axahaters. They’re making quite a big deal of it.
LE: That’s because they’re idiots. …
JON: So you’re saying this is a non-story.
LE: Completely. … If Alec deleted any of his emails and there’s no backup anywhere, then the emails no longer exist and he isn’t expected to produce them. I’m sure the plaintiffs said the same thing about some of the discovery they were asked to produce. It happens. You can’t force either party to produce something that doesn’t exist.

The Rumor That Wasn't

Trouble is, the missing trove of missing emails — hundreds at least — weren’t revealed until Gossett’s deposition the day after the hearing. Other than the AxaMonitor report, the emails weren’t publicly known until the plaintiffs’ October 27 court filing. In the meantime, Axanar supporters were instructed how to address the “rumor” — even posting the talking points on forums where Carlos Pedraza posted on entirely unrelated subjects.

LAWSUIT PRIMER Get an overview of the copyright lawsuit, including a timeline of the case, as well as downloadable pleadings made by the plaintiffs, CBS and Paramount, and defendants Alec Peters and Axanar Productions Inc. » Lawsuit Primer

The Shill

Meanwhile, Lane himself questioned the veracity of the AxaMonitor report:

I was in the courtroom. Carlos wasn’t. 🙂 … I’ve been asked about this ridiculous rumor for the past two days by half a dozen people. … To me the REAL big story here is asking where Carlos Pedraza is getting his inside information from. There were EIGHT people in that courtroom on Friday: me, Erin Rahanan and Kelly Oki from Winston & Strawn, Jonathan Zavin and David Grossman from Loeb & Loeb, the judge, the clerk, and the court stenographer.

I’m pretty sure the last three didn’t run and tell Carlos what was said during the hearing. I know that I didn’t tell him. I’m pretty sure Erin and Kelly didn’t tell him because, honestly, they don’t even tell ME jack shat! (And trust me, I’ve been trying!!!) So that leaves the Loeb & Loeb attorneys. I’m not sure which of them (or both) is feeding Carlos information about the case to disseminate to the masses, but the reason why is obvious: the studios need to find a way to drum up some support and sympathy from the fans. Carlos is a PR vehicle for them.18)

Loeb attorneys have not responded to AxaMonitor‘s repeated requests for interviews, just as Winston’s have not; Editor Carlos Pedraza has no relationship with any of the attorneys. AxaMonitor obtained its information the old-fashioned way: feet-on-the-beat reporting.


Keywords

1) , 5)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 7, 10/27/16.
2)
Email from Erin Ranahan to David Grossman, 9/26/16.
3)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 1, 10/27/16.
4)
Email from David Grossman to Erin Ranahan, 10/26/16.
6)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 11, 10/27/16.
7)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 9, 10/27/16.
8)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 5, 10/27/16.
9)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 2, 10/27/16.
10)
Plaintiffs’ Ex Parte Application for Order, Exhibit B, 10/27/16.
12)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 3, 10/27/16.
13) , 14) , 15)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 12, 10/27/16.
16)
Plaintiffs’ Ex Parte Application for Order, Memorandum of Points and Authorities, p. 13, 10/27/16.