Court denies World of Boxing’s request for Wilder emails re Meldonium in continuing legal drama

March 21, 2018

The United States District Court in Southern New York has denied a Motion to Compel in the World of Boxing/Alexander Povetkin lawsuit against Deontay Wilder.  Previously produced documents from Wilder’s attorney were determined to be work product by the Court.

The case has a long and winding history and while a jury determined that Povetkin had Meldonium in his system post-January 2016, the legal issues related to $7.15 million still held in escrow as well as allegations that Wilder breached his contract.  A breach of contract carries liquidated damages of $2 million.

Order on Motion to Compel by JASONCRUZ206 on Scribd

Central to the latest legal wrangling is a Motion to Compel documents originally filed last year by World of Boxing and Povetkin (“WOB”).  The motion was stayed (held off on a decision) until the end of last February’s trial.  The Court has now ruled on the issue and denied WOB from receiving emails from Wilder’s camp which discuss Meldonium.

The issue concerns 15 emails sent by Wilder’s attorney John Wirt after it was discovered that Povetkin tested positive for Meldonium.  Wirt has sent a letter to the escrow agent holding the purse money indicating that it not be released until resolution of the matter since it was Wilder’s position that Povetkin breached the Bout Agreement due to his positive drug test.  WOB objected to the letter which precluded the release of funds.

The emails were originally produced in written discovery but when WOB produced them at deposition, Wilder invoked a “claw back” provision which allows for the return of documents deemed attorney-client or work product.  On its privilege log, a list of documents withheld which lists the reason for not producing, it noted that the emails were attorney-client privilege.

Wirt’s emails were not sent to Wilder but his reps including Lou DiBella and Al Haymon.

According to the Court,  “The Wirt Email analyzes the WOB Parties’ mid-May [the fight was set to take place in late May 2016] explanation for the failed drug test that is at the heart of this dispute and discusses possible responses to it. Wirt recommends a course of action to the individuals receiving his email.”

Notably, there are subsequent emails from Shelly Finkel (Wilder’s co-manager) with his thoughts and the email is to employees of Wilder’s promoter, Lou DiBella.

WOB argued that the emails were discoverable because they were labeled as attorney client privileged and not work product.  Furthermore, they were not prepared in further anticipation of litigation which is a requisite in protecting a document via work product.  WOB argued that in deposition testimony by DiBella and Alex Dombroff, they were not thinking of a lawsuit.

The Court indicated that it could make the decision to deem the documents work product even if Wilder did not.  Secondly, it disagreed with WOB’s argument.  The Court writes that Wirt’s email was sent to protect the interests of Wilder in the prospect of litigation as Povetkin had failed a drug test and there was potential for the fight to be called off.  Moreover, Wirt had to protect his client’s interest with respect to the escrow money.

After an “in camera” [looking at the documents] review of documents, the Court determined that the emails were work product. Additionally, they stated that WOB did not show a “substantial need” for the documents and the Court determined that the emails were protected under work product.

Payout Perspective:

This case seems to be far from over as the fight over which side breached the Fight Contract and who should receive the $7.15 million in escrow.  Wilder was set to make over $4.5 million while Povetkin was going to make $1.9 million.  The winner would have earned an additional $715,000.  However, Povetkin’s promoter, who made the successful purse bid, would like the money back.  In addition, they claim Wilder breached his agreement to travel to Russia despite the news of Povetkin’s drug test.  The contract indicates a liquidated damages penalty of $2 million.  One has to wonder the importance of the emails as WOB has seen the contents.  It’s a matter of being able to utilize them in evidence.  Since the Court has determined them to be work product, they cannot be used at all.

MMA Payout will keep you posted.

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