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.

2017: The year in boxing

January 6, 2018

2017 was a great year for boxing which saw some great fights and the spectacle that was Mayweather-McGregor.

The year started off with the talk about Mayweather-McGregor as the UFC’s lightweight champion stirred the pot by going on a rant on Instagram where he wrote “F*** the UFC.”  Dana White warned that if Conor went on without the UFC it would be an “epic fall.”

January also saw Al Haymon get a court victory with a dismissal of Golden Boy’s Antitrust lawsuit.  In a ruling which did not include oral argument, the Judge determined that Golden Boy did not come fort with genuine issues of fact to support its claims.  Most importantly, and a word of caution for the Plaintiffs in the UFC Antitrust lawsuit, the Judge reiterated that the antitrust laws protect competition, not competitors.

Although Golden Boy suffered the loss in court, it inked a deal with ESPN with 42 fights airing on ESPN starting in March 2017.  As the prevailing party, they requested legal costs in the amount nearing $35,0000.  Golden Boy appealed the dismissal but it appears that the sides resolved the case as the appeal was dismissed by agreement of the parties.

The Deontay Wilder-Alexander Povetkin/World of Boxing lawsuit went to trial in February and it did not take long for a jury to decide that Povetkin took Meldonium after January 1, 2016.  However, the case continues with the parties litigating the other claims as well as the issue who receives the millions of dollars that has been placed in escrow.

Wilder was also sued by rival Dominic Breazeale for a hotel melee.  The case was thrown out as the episode happened in Alabama but Breazeale sued in California.

Showtime Boxing had the highest rating of 2017 with Adrian Broner taking on Adrian Granados drawing 779,000 viewers.  The fight also aired on Twitter as the service continued to expand its offering of streamingClaressa Shields became the first female boxer to headline an event on premium network television. In March.

The GGG-Daniel Jacobs PPV drew between 130-150K PPV buys.  GGG’s next PPV appearance against Canelo would draw much higher as the draw drew 1.2 million buys.  The fight also had a higher price tag than usual:  $79.99 HD.  A rematch for May 2018 seems imminent.

March saw the second highest-rating for network viewership as Keith Thurman faced Danny Garcia in the battle of unbeatens on CBS.  The fight drew 5.1 million viewers while the overall telecast drew 2.7 million viewers.

After going through a lot of money, the viability of the PBC obtaining a media rights deal was brought into question.  Its deal with Spike TV ended but the organization found a home on FS1.

In 2017, it seemed as those everyone applied for a boxing license:  Conor, Nate Diaz, Cyborg…

Anthony Joshua faced Vladimir Klitschko in one of the biggest fights of the year.  The event aired live on Showtime and tape delay on HBO.

May’s Canelo Alvarez-Julio Cesar Chavez, Jr. PPV drew 1.3 million buys and its replay on HBO drew 769,000 viewers.

In May, we took a look at where was Boxing’s next PPV star.  Aside from Canelo Alvarez, there are several contenders to be the next star on PPV including Anthony Joshua.

In June, The Money Fight was announced.

Also in June, Top Rank announced that it had a deal with ESPN to air fights with the first one being Manny Pacquiao fighting Jeff Horn in Australia on July 1st.  The debut earned big numbers as Pacquiao lost a controversial decision to Horn.

The Andre Ward-Sergey Kovalev II PPV in June drew between 130-135K PPV buys.

July saw a 4-city tour to promote the Mayweather-McGregor bouts.  It was an ambitious tour that fans clamored to be a part.  It was announced that the PPV price would be $99.95 HD.

The Money Fight drew huge numbers and was a big financial success.  We wrote about it here.  The event had streaming issues on both UFC Fight Pass and Showtime platforms.  As you might expect, there were lawsuits which are still matriculating through the court system.

Despite the big event, HBO ran an event featuring Miguel Cotto and it did well considering as it drew 730,000 viewers.

Capitalizing on the publicity of The Money Fight, announced an ESPN deal which will include airing its fight library on an OTT service that will launch in 2018.

Austin Trout sued the WBO which included claims under the Ali Act.  The case was moved to federal court in Puerto Rico where the WBO is seeking to dismiss the case and move it to arbitration.  The case will be an interesting look as to whether the court will allow a claim under the Ali Act will go to arbitration.

In September, Magomed Abdusalamov settled with the state of New York for $22 million for injuries sustained in a fight in 2013.  Abdusalamov was left with a brain injury and paralysis due to improper conduct and lack of training by the New York State Athletic Commission.

A huge ESPN fight between Vasiliy Lomachenko and Guillermo Rigondeux drew 1.73 million viewers.  The overall telecast drew 1.487 million viewers.

In December, Showtime announced Mayweather-McGregor drew 4.3 million domestic PPV buys.  This is off from the 6.7 million Dana White had stated.  After hearing of the announcement, White took issue with Showtime’s numbers.

One of the bigger stories to watch going into 2018 is the announcement by Dana White that he will be promoting boxing.  Zuffa Boxing, a t-shirt worn by White during The Money Fight press tour, was a hint that White was up to something.  White made it official late in the year.  He indicated that he was meeting with Floyd Mayweather.  Despite stating that he will never work with Showtime again, he said he would be willing work with other promoters with the exception of Bob Arum.

Wilder-World of Boxing case continues with Motion to Compel documents re Meldonium

October 26, 2017

The Deontay Wilder versus World of Boxing/Alexander Povetkin case has not ended.  Despite a Court ruling which denied World of Boxing and Povetkin’s (collectively WOB”) motions for new trial and/or motion for a judgment notwithstanding the verdict, the parties continue with the other elements of the causes of action.

In September, the Court denied motion to overturn the February jury verdict which determined that Povetkin took Meldonium after January 1, 2016.  Meldonium was a banned substance post-January 1, 2016.  He claimed that the detection of the Meldonium stemmed from taking it sometime in 2015.

A Joint Status Report filed with the Court mapped out further happenings in this lawsuit.  There is scheduling for the potential of a Motion for Summary Judgment and WOB has filed a Motion to Compel documents.

At this point, the attorneys for WOB filed a motion to compel certain documents from a string of emails from May 25, 2016.  This came to light during a deposition in which a WOB lawyer attempted to question a witness about the email string.  The lawyers for Wilder requested to “clawback” the document.  A “clawback” is a provision which allows the return of documents that were erroneously provided to the other side.  The reason for the “clawback” is that they are protected by a certain privilege or confidentiality.  This occurs in high-volume electronic discovery cases.

Wilder asserts that the emails were confidential communications protected by attorney-client privilege.  The Wilder privilege log which lists the documents that have not been produced to the other side states that they are protected by the Attorney-Client Privilege.  WOB claims that these exceptions do not apply.  The gist here is that the documents that are being withheld are said to be confidential because they include attorneys in the string of emails.  However, WOB claims that these emails are not protected because they were provided to third parties.

Payout Perspective:

Just when you thought that this case might be over, it continues. It appears that the parties are moving forward with the Breach of Contract cause of action.  This motion to compel was held until the finish of the post-trial briefing per Court order.  At this point, we don’t know the substance of the emails that are being withheld, only that they relate to Meldonium.  Wilder’s attorneys will likely argue that the substance of the emails is protected by attorney-client privilege or were provided to others maintaining privilege.  WOB argues that the substance of the emails is not legal in nature and do not uphold the privilege.  Even if the emails are proven not to be attorney-client privilege and handed over to WOB, the question is whether the substance of those emails will have any impact on the case.  A jury did find that Povetkin took Meldonium post-January 1, 2016.  Any information from the Wilder emails must provide something more to prove elements of WOB’s theory of the case.

MMA Payout will keep you posted.

Court denies World of Boxing’s post-trial motion for new trial in Wilder case

September 27, 2017

The trial court in New York has denied the World of Boxing’s Motion for Judgment as a Matter of Law or in the alternative, a New Trial.  It held that the jury did its job in evaluating the evidence and the credibility of witnesses and based on it was able to produce the jury verdict.

The case arose out of a failed fight between heavyweight champion Deontay Wilder and Alexander Povetkin.  MMA Payout has been the only source that has covered this legal case extensively.  You can find some of the background here.

Order by JASONCRUZ206 on Scribd

You may recall, the sole issue at trial was whether Povetkin ingested Meldonium post January 1, 2016.  When the trial took place in February of this year, the jury did not take long to determine that Povetkin had ingested the drug which was prohibited by the World Anti-Doping Agency on January 1, 2016.  Attorneys for World of Boxing (Povetkin’s promoters) and Povetkin filed a Motion for Judgment as a Matter of Law, or in the alternative a new trial.  Additionally, in June, the attorneys for WOB claimed a new study may give cause for the Court to open the case back up to litigation and/or set up a new trial.

via Wikimedia Commons

via Wikimedia Commons

Judge Andrew Carter of the U.S. District Court for the Southern District of New York determined that World of Boxing’s efforts amounted to an attempt to re-litigate the case.  Judge Carter indicated that the jury made the verdict based on the evidence presented and there was no miscarriage of justice or conclusion not based on evidence.  He opined that WOB was asking to take as truth the testimony of their experts only in coming to a jury verdict.  The Court also determined that the jury based its decision on their impressions of Alexander Povetkin as he was able to testify at trial.  Bluntly, the Court stated in its opinion that the jury flat out did not believe his testimony. Moreover, the new study that was produced by WOB attorneys in June was available online on February 6, 2016, which was the first day of trial.  Yet, it was not brought up at trial.

Payout Perspective:

The Court ruling comes over 8 months after the jury verdict.  The case may not die yet as WOB still has an opportunity to appeal to the 2nd Circuit.  If it does not, the issues of court costs and fees arise.  Also, there is the case of what happens to the money that has/had been in escrow which is one of the forgotten issues here.  In reviewing the case, it appears that the first issue with the handling of the case was the agreement to limit the case to just one issue regarding the use of Meldonium.  The carrot of having a shorter discovery schedule and a trial date sooner than later was likely a reason why the parties decided.  However, as we saw, the case involved issues related to the late production of discovery and experts.

The litigation was marred by contentious behavior as the order included a sentence about the parties’ behavior stating, “The Court takes exception to the behavior of both parties throughout the pendency of this litigation.  The parties are once again ordered to proceed with civility and in conformance with the Court’s local rules.”

MMA Payout will have more on this as it comes down.

 

 

Povetkin-WOB bring up new information in Wilder Meldonium case

July 5, 2017

The attorneys in the Deontay Wilder-Alexander Povetkin/World of Boxing case are at it again with letters to the court sent late last month.  The parties await a pending Motion for New Trial and/or Motion for JNOV but the attorneys for Povetking and WOB are lobbying the Court to consider newfound information.

As you may recall, at trial in February, a jury took little time in siding with Wilder.  The jury decided that Povetkin had ingested Meldonium after January 1, 2016, the sole issue at trial, and Wilder won as a result.  Povetkin filed a Motion for New Trial, or in the alternative, Motion for Judgment Notwithstanding the Verdict.

In a letter to the Court dated, June 21, 2017, the attorneys for Povetkin and WOB note that a WADA Technical Document dated May 17, 2017 stated that WADA advised that “urinary concentrations of Meldonium below 100 ng/mL “should not be reported” “as an Adverse Analytical Finding.”  The attorneys argue that this was in direct contrast to the opinion of Wilder’s expert which noted that he follows the WADA technical documents.

Povetkin WOB letter to Court 06.21.17 by JASONCRUZ206 on Scribd

They also note that the WADA laboratory that examined Povetkin’s specimen has had its accreditation partial suspended.  The suspension was announced via WADA press release on June 20, 2017 and Povetkin and WOB argue that this “goes to the heart of this litigation.”  The argument is that the reliance on the accreditation by Wilder’s attorneys and his expert place the verdict into question since these issues have arisen after the verdict.

In response, Wilder’s attorney states that the two issues raised are irrelevant and are a ploy for another “bite at the apple.”  Wilder’s attorney notes that the WADA technical document does not go into effect until September 1, 2017.  Thus, the document does not go into effect until a year and a half after Povetkin’s positive test for Meldonium took place on April 27, 2016.

They also bring back the original question that was posed before the jury at trial earlier this year: “Did Alexander Povetkin ingest meldonium after January 1, 2016?”  This negates the argument of whether or not Povetkin would have tested positive for Meldonium under WADA guidelines.

WOB Letter 06.30.17 by JASONCRUZ206 on Scribd

With respect to the allegations that the UCLA Lab has had its accreditation partially suspended by WADA, Wilder’s attorney argues that the partial suspension does not mean that it cannot continue its regular anti-doping activities and is only for three months.  It stresses that the notice does not even apply to UCLA’s testing for Meldonium, which is central to the issue at trial.  It suggests that this fact would have likely been excluded at trial under Federal Rule of Evidence 403(b) due to the fact that its “probative value” is outweighed by its prejudicial effect.  It also suggests that this new information allows Povetkin/WOB to engage in wild speculation about the case based on assumptions.  For instance, it argues that Povetkin and WOB claim that Wilder’s expert at trial knew about the “impending suspension” which would imply that he was lying under oath.

Payout Perspective:

It has been several months since the attorneys for Povetkin and the World of Boxing have filed its motion for a new trial or trial notwithstanding the verdict without a ruling from the Court.  The latest wrangling are valid if you represent the defendants but the threshold for a motion for new trial would bet that there were significant legal errors.  The issues brought up by Povetkin and WOB seem to be more factual in nature.  Regardless, the bar to have such a motion granted (new trial or overturning a judgment) is high and somewhat difficult because you are asking the Court to overturn its own decision.  Rather, these arguments seem more appropriate for an appeal.  Moreover, the Court does not really have a time limit to decide on this motion whereas an appeal would have had more stringent guidelines.

MMA Payout will keep you posted.

Povetkin attorneys submit rebuttal report explaining VADA tests

February 6, 2017

World of Boxing has submitted a rebuttal expert to address the additional “raw data” supplied by the UCLA Olympic Analytical Laboratory.

The report is from Biochemist Dr. Douwe de Boer. Dr. de Boer reviewed the information including the rebuttal expert report from Wilder’s expert. Importantly, it includes review of Povetkin’s VADA urine drug tests from April 8,9, 10 and 27th.

The sole issue at trial is whether Alexander Povetkin took Meldonium post-January 1, 2016.  Wilder claims he did.  Povetkin argues that the finding of Meldonium occurred in 2015 prior to the WADA ban.

The anticipated theory of the case is that the negative drug tests of April 8-10 and the positive drug test of April 27th for Meldonium show that Povetkin took the drug after his April 10 test.

However, Dr. de Boer concludes that “the so-called “negative” results for Meldonium in some of the urine samples collected does not mean that no Meldonium is present.” He asserts that a possible concentration was “sometimes below” the limit to detect it. He claims that some of the samples were “not negative,” but merely “not adverse.” He concludes that based on the low values “of a logical pharmacokinetic profile, its unlikely Povetkin took Meldonium post-April 11.

Expert Findings on Behalf of Povetkin by JASONCRUZ206 on Scribd

Payout Perspective:

So, it will be a battle of experts at trial. Dr. de Boer suggests that Povetkin had Meldonium in his system from his physician prescribed use prior to the WADA ban. But, the tests that revealed it to be negative actually had Meldonium in them. Thus, Povetkin’s expert argues that there would be no inconsistency in the tests as the Meldonium that showed up in the April 27 test was not new. We should see how this theory plays out this week.