Joke Experts Axed From Conan O'Brien Trial

Late Night Host - Conan 2-  Episode 0993 - H 2017
Meghan Sinclair/Conaco, LLC for TBS

Conan O'Brien's joke theft trial is expected to feature a guest appearance from fellow comedian Patton Oswalt, but a California federal judge has decided two experts proffered by the man suing the late-night host aren't relevant enough to testify.

Alex Kaseberg in July 2015 sued O'Brien, along with his company Conaco, TBS and Time Warner, claiming Conan writers stole jokes about Caitlyn Jenner, Tom Brady and the Washington Monument from his social media feed and blog.

Before getting to the joke experts, there's a more somber issue first addressed by the court: whether the public will have access to the entire trial. O'Brien and TBS in March asked U.S. District Judge Janis Sammartino to either split the issues of liability and damages into separate trials or close the courtroom and seal documents and transcripts related to nonpublic financial information. Sammartino declined to bifurcate the trial — but will close the court during testimony about confidential financial issues.

With regard to the substance of the jokes, Sammartino also granted O'Brien's request to bar testimony from David Barsky, Kaseberg's expert who was brought in to analyze the "pattern" of jokes that appeared on both Kaseberg's blog and Conan monologues and whether that pattern suggests those overlaps were coincidental, and Elayne Boosler, a comedian who was intended to address the substantial similarity of the jokes.

"[It is undeniable that Dr. Barsky’s opinions were based on evidence furnished by Plaintiff’s counsel and prepared for litigation and that Dr. Barsky’s statistical model was prepared for the purpose of testifying," writes Sammartino, adding that other aspects of Barsky's report are also problematic.

"Indeed, it is unclear what relevance the 'pattern' Dr. Barsky was asked to evaluate holds: jokes published on Plaintiff’s blog and later appearing on the Conan monologue do not necessarily correlate with infringement on the part of Defendants or rule out the possibility of their independent development," writes Sammartino. "This issue is only compounded by Dr. Barsky’s apparent assumption — based on the limited data furnished by Plaintiff that formed the basis of his Complaint — that there were no other 'overlapping jokes' during the arbitrarily defined periods examined, a fact neither tested nor verified by Plaintiff or Dr. Barsky."

While Sammartino doesn't dispute that Boosler is "an expert comedienne," he found her evidence is "neither necessary nor helpful" because it doesn't delve into the requisite analysis.

Meanwhile, Kaseberg asked Sammartino to prevent defendants from sharing third-party evidence of other jokes similar to the ones at issue. The judge agreed that similar jokes published after Kaseberg's blog should be excluded, but any that predated his are relevant to the independent creation defense. Sammartino will also allow defendants to offer evidence of other jokes that show "overlapping comedic sensibilities" between Kaseberg and Conan's writers. 

The witness list includes Oswalt, Andy Richter, Turner production exec David Wolkis, a host of Conan writers and, of course, O'Brien himself.

Sammartino also denied Kaseberg's request to amend his complaint and add a claim for vicarious copyright infringement against TBS because the deadline to amend was in 2016 and he couldn't demonstrate having good cause for the court to allow such a change now. The trial is currently set to begin next month.

Read the full order below.