Orphan

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Steven T. Lowe, SBN 122208
steven@lowelaw.com
Kris S. LeFan, SBN 278611
kris@lowelaw.com
LOWE & ASSOCIATES, P.C.
11400 Olympic Boulevard, Suite 640 Los Angeles, California 90064
TELEPHONE: (310) 477-5811 FAX: (310) 477-7672
Attorneys for Plaintiff: STEPHEN HENDRICKS

LEON GLADSTONE (SBN 70697)
lgladstone@gladstonemichel.com
ANTHONY DIPIETRA (SBN 235994)
adipietra@gladstonemichel.com
GLADSTONE MICHEL
WEISBERG WILLNER & SLOANE, ALC
4551 Glencoe Avenue, Suite 300 Marina del Rey, CA 90292-7925
Tel: (310) 821-9000 Fax: (310) 775-8775
Attorneys for Defendants New Video Channel, LLC dba BBC America and
Temple Street Productions (US) Inc.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
STEPHEN HENDRICKS, an
individual,

Plaintiff,

vs.

BBC AMERICA, INC., a Delaware
corporation; TEMPLE STREET
PRODUCTIONS, a business entity,
form unknown; TEMPLE STREET
PRODUCTIONS (US) INC., a
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CASE NO. 2:14-CV-02989-RSWL-SSx

JOINT RULE 26(f) REPORT

Scheduling Conference
DATE: September 16, 2014
TIME: 10:00 AM.
COURTROOM:


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Case 2:14-cv-02989-RSWL-SS Document 18 Filed 09/02/14 Page 1 of 11 Page ID #:80

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California corporation; DAVID
FORTIER, an individual;
GRAEME MANSON, an
individual; J OHN FAWCETT, an
individual; and DOES 1 to 50,
inclusive,

Defendants.

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Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, Local Rule
26 and this Court's J une 25, 2014, Order Setting Scheduling Conference (Court
Document No. 11), Plaintiff Stephen Hendricks, an individual, (hereinafter referred
to as "Plaintiff") and Defendants New Video Channel, LLC dba BBC America and
Temple Street Productions (US) Inc. (hereinafter referred to as Defendants)
submit the following J oint Civil L.R. 261/Rule 26(f) Report.
It should be noted that the following defendants who reside or do business in
Canada are still in the process of being served under the Hague Convention:
Temple Street Productions; David Fortier, Graeme Manson, and J ohn Fawcett.

A. Statement Of The Case:

Plaintiff Contends:
Defendants stole Plaintiffs copyrighted work. Plaintiff submitted his
screenplay to Defendant, Temple Street Productions, in 2004. Temple Street
Productions vice president, David Fortier (Fortier), pass[ed] on the screenplay
and then subsequently collaborated and/or conspired with other Defendants to
produce and distribute the hit television show Orphan Black. Plaintiff further
contends that, in the alternative, an implied agreement was formed between
Plaintiff and Temple Street Productions/Fortier (and any other defendants that may


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be jointly obligated under applicable legal theories) whereby if Defendants used
and/or exploited Plaintiffs ideas he would be compensated and credited
appropriately.

Defendants Contend:
Defendants contend that the series Orphan Black is an original work based
on a screenplay created by writers Graeme Manson and J ohn Fawcett. Manson and
Fawcett came up with the idea independently and without the participation of
Temple Street Productions.
Defendants assert that Temple Street Productions did not learn of the
Orphan Black screenplay until 2009, when the screenplay was submitted to it as a
fully formed script. Defendants further deny that the work infringes upon
Hendricks copyrights since it was created independently and without knowledge
of or access to Hendricks screenplay. Defendants further assert that Temple Street
Productions does not have any actual knowledge concerning the alleged
submission of Hendricks screenplay, and the entity identified in the complaint that
Hendricks allegedly submitted the screenplay to is an entirely different entity than
any of the entities named in this lawsuit.
Defendants further contend that Temple Street Productions (US) Inc. is not
involved in any manner with the production or distribution of the series Orphan
Black.

B. Legal Issues:
Plaintiff Contends: That the defendants conduct constitutes Copyright
Infringement and/or Breach of Implied Contract. Plaintiff further contends that
under the case of Fiest (Feist Publications, Inc. v Rural Telephone Service Co.,
Inc., 499 U.S. 340 (1991)), the only test for substantial similarity that can be


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applied in the case is the selection and arrangement test, recently applied by the 9
th

Circuit in the LA Printex case ( L.A. Printex Industries, Inc. v. Aeropostale, Inc.,
676 F.3d 841 (9th Cir.2012)) and that this court must disregard the filtration test
applied by the Court in the Funky Films case (Funky Films Inc. v. Time Warner
Entertainment Company L.P., 462 F.3d 1072 (2006)).

Defendants Contend: Defendants contend that the series Orphan Black is an
original work, that Orphan Black did not copy or otherwise incorporate any
portions of Plaintiffs screenplay, and that the creators of Orphan Black did not
have access to Plaintiffs screenplay. Defendants further contend that the portions
of Hendricksscreenplay that are allegedly similar to Orphan Black do not
constitute original works and/or are otherwise not copyrightable elements. The
legal issues involved in this suit therefore include, without limitation, original
ownership, access, copying, originality, whether the constituent elements are
entitled to copyright protection, and substantial similarity.

C. Damages:
Plaintiff Contends: That he is entitled to all profits generated by the
television show, comic book and any and all other derivative works from the show
Orphan Black plus an amount equal to customary purchase price or licensing fee
for the Screenplay in addition to Executive Producer and Creator Credit and
payment commensurate with those titles and the value of those credits.

Defendants contentions: Plaintiff has suffered no damages as a result of the
claims alleged in this action.

D. Insurance:


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Plaintiff Contends:
Plaintiff presently is not aware of any insurance coverage for Plaintiffs claims
herein.

Defendants Contend: The claims in this action are potentially insured under an
insurance policy issued by Allianz Global Corporate & Specialty Americas.

E. Motions:
Plaintiff Contends:

Plaintiff may seek to amend the complaint if, after conducting discovery, Plaintiff
discovers additional misconduct or additional parties involved in the misconduct
alleged in the complaint.

Plaintiff does not anticipate any other motion at this time.

Defendants Contend:
Defendants intend to file a motion for summary judgment in this action.
Defendants expect that further motion practice will be required in the event that
Plaintiff ultimately serves the complaint on any foreign entities named in the
Complaint.

F. Manual for Complex Litigation:

The parties agree that the manual for complex litigation is not necessary.

G. Status of Discovery:


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The parties have completed their Rule 26(f) Conference, and expect to
promptly commence formal discovery. However, discovery is in its initial phase at
this time and no written discovery or depositions have been completed or will be
completed as of the time of the filing of this J oint Report.

H. Discovery Plan:
Scope of Discovery:

The parties anticipate taking discovery on any and all information relevant to
their respective claims and defenses. The parties agree that discovery should not be
conducted in phases. At this time, Plaintiff anticipates conducting discovery at a
minimum with reference to:
a) Requests for production to all defendants
b) Depositions of each named defendant including person(s) most
knowledgeable.

Initial Disclosures: The parties agree that initial disclosures, as required by Federal
Rule of Civil Procedure 26(a)(1), shall be made within thirty (30) days of the entry
of the Courts Rule 16 Scheduling Order. The parties otherwise do not believe any
changes should be made in the timing, form, or requirement for disclosures under
Rule 26(a).

No Modification to Rules: At this time, the parties agree that there is no need to
modify the limitations on discovery imposed under the Federal Rules of Civil
Procedure or the Local Civil Rules. The parties agree that the limitations on
discovery may be altered pursuant to the written agreement of the parties, or
pursuant to Court order.


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Preservation: Counsel for Plaintiff and Defendants have discussed with their
clients the need to preserve all potentially relevant information and documents.

Discovery Schedule: The parties believe that discovery should be completed by the
dates in this J oint Report and the Schedule of Pretrial and Trial Dates set forth
below. The parties do not believe that discovery should be conducted in phases or
be limited to or focused on particular issues.

Other Orders:
The Parties have discussed the possibility of a protective order governing the
disclosure of confidential information exchanged during discovery. Depending on
the discovery ultimately sought, the Parties will likely file a stipulation for the
entry of a protective order for the Court's approval under separate cover. Except as
described in this paragraph, the parties do not believe the Court should enter any
other orders under Rule 26(c) at this time.

I. Discovery Cut-Off:
The parties believe that discovery should be completed by the dates in this
J oint Report, including the resolution of all discovery motions. Specifically, the
parties propose a non-expert discovery cutoff date of September 16, 2015. The
parties agree that the deadlines to disclose expert witness information and reports
shall be governed by the times set forth in Rule 26(c)(2)(D). All expert discovery
shall be completed no later than thirty (30) days before trial, except by written
agreement by all the parties or Court order.
All discovery motions shall be filed so that they are heard no later than
October 16, 2015.


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J. Dispositive Motions:

Plaintiff Contends: He does not anticipate filing any dispositive motions at this
time.

Defendants Contend: Defendants intend to file a motion for summary judgment in
this action.

Plaintiffs believe that dispositive motions should be filed so that they are
heard no later than forty-five (45) days before trial. Defendants believe that the
motions should be filed no later than forty-five (45) days before trial.

K. Settlement/Alternative Dispute Resolution (ADR):

Settlement Communications: The parties have not engaged in any in depth
settlement discussions at this time.

ADR: The parties agree to have this case referred to the Court Mediation Panel.

L. Trial Estimate: 10-15 days

Both parties agree upon and hereby propose the following dates and
deadlines related to trial:


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October 1, 2015, for filing Memoranda of Contentions of Fact and
Law, Exhibit & Witness Lists, Status Report Regarding Settlement and Motions in
Limine.

October 16, 2015, for lodging Pretrial Conference Order, Filing
Agreed Set of J ury Instructions and Verdict Forms, Statement Regarding Disputed
Instructions, Verdicts, etc.and Oppositions to Motions in Limine.

October 21, 2015 for the Final Pretrial Conference; and

November 2, 2015 for the Trial Date.

The parties estimate a jury trial will last approximately ten (10) to fifteen
(15) days.

Plaintiff presently anticipates calling 5-7 witnesses in his case-in-chief at
trial.

Defendants investigation into the allegations of the complaint has just
begun. Defendants, therefore, cannot provide an estimate as to the number of trial
witnesses, except that Defendant expects to call each of the parties named in the
complaint as a trial witness. Defendants anticipate that third-party witnesses also
will be called, as well as currently unidentified expert witnesses.

M. Trial Counsel:

Plaintiffs Trial Counsel:


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STEVEN T. LOWE
KRIS S. LEFAN

Defendants Trial Counsel:

LEON GLADSTONE
ANTHONY DIPIETRA

N. Independent Expert or Master:
The parties do not believe this is a case where the Court should appoint a
master pursuant to Rule 54 or an independent scientific expert.

O. Other Issues:
The parties are not aware of any other issues affecting the status or
management of the case.

DATED: September 2, 2014 GLADSTONE MICHEL WEISBERG
WILLNER & SLOANE, ALC

By: /s/ Anthony DiPietra
LEON GLADSTONE
ANTHONY DIPIETRA
Attorneys for Defendants New Video
Channel d/b/a BBC America and Temple
Street Productions (US) Inc.

DATED: September 2, 2014 LOWE & ASSOCIATES, P.C.

By:_/s/ Kris S. LeFan
STEVEN T. LOWE
KRIS S. LEFAN
Attorneys for Plaintiff Stephen Hendricks


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ATTESTATION PURSUANT TO GENERAL ORDER 45
Pursuant to the local rule 5-4.3.4, for the United States District Court for the
Central District of California, I, Kris S. LeFan, hereby attest that the concurrence
to the filing of this joint rule 26(f) report has been obtained from Anthony DiPietra,
who has provided the conformed signature above.


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