In one of the very few Hollywood idea theft cases to withstand a judge’s initial scrutiny, Universal Studios is headed towards an evidentiary hearing on Aug. 28 to examine the possibility of a forensic investigation into whether James DeMonaco, the writer and director of The Purge, doctored his emails to establish early creation of the horror film.
Douglas Jordan-Benel is the plaintiff in the lawsuit alleging the film about an annual 12-hour period where all crime is legal derives from his screenplay called Settler’s Day. Jordan-Benel further says he submitted his script to UTA and others in the entertainment industry for consideration and that accordingly, The Purge represents both a copyright infringement as well as a breach of an implied contract to pay him for use of his ideas.
Since the lawsuit was filed back in 2015, the stakes have grown. Not only because The Purge and its three sequels have grossed nearly $300 million in worldwide box office, but also because because Universal, Platinum Dunes Productions and DeMonaco failed to get the case thrown out with an anti-SLAPP motion and then were unsuccessful in killing the case at the 9th Circuit Court of Appeals.
So the defendants have now turned to an attempt to establish that whatever the similarities between The Purge and Settler’s Day, DeMonaco independently created his work.
But when DeMonaco turned over documents in the discovery phase of the case, Jordan-Benel’s representatives saw some discrepancies that they suspected meant DeMonaco may have fiddled with timestamps. A demand was made for documents in native format to examine metadata as well as a forensic imaging of the screenwriter’s electronic equipment.
Judge Michael Wilner was going to allow a somewhat more limited discovery about discovery, as he put it, then pulled back and set the matter for an evidentiary hearing next week.
On Tuesday, both sides presented a summary of testimony at the hearing.
Steven Lowe, who is representing Jordan-Benel, plans to bring forward Jason Ray, an electronic discovery expert at FTI Consulting.
Ray will testify about emails alleged to be sent by DeMonaco back in 2009 that show last modified dates of Oct. 29, 2015 (right in the midst of the first battle to dismiss the case). Other emails don’t show a 2015 modification. Some documents showed modification in Feb. 6, 2106 — obviously a date well into the future. And then there are supposedly strange document attachments as well as word that 53 emails sent by DeMonaco to his own UTA agents weren’t produced on UTA’s side. Ray asserts that one reasonable explanation for the discrepancies is that these files were manipulated.
Universal will be calling to the witness stand a pair of forensic experts to offer up an explanation for discrepancies. They will testify that lingering questions about odd dates and documents out of the blue can be explained by DeMonaco’s practice of sometimes storing never-sent emails in the drafts folder or sending himself emails for preservation sake.
There also has been suggestion that the “last modified” date might have been altered upon retrieval, but Ray doesn’t believe any of these explanations hold water.
The judge will make a determination whether a fuller investigation is in order after next week’s hearing. Perhaps there is indeed an innocent explanation, but if Jordan-Benel is able to make a good case for evidence tampering, it could lead to a motion for sanctions and perhaps end up being heard by a jury. After all, in real life, misconduct can have consequences.