Mitre Sports International Limited v. Home Box Office, Inc.

Filing 370

ORDER: Accordingly, for all the foregoing reasons, (1) HBO's objections to the Special Master's Decision and Order are overruled; (2) HBO's application to compel Mitre to produced Kam Raghavan in the District for the continuation of he r deposition is denied unless HBO has more than five hours of questioning for Raghavan; if HBO has less than five hours of questions for Raghavan Mitre is to make her available for deposition via video link at Mitre's expense; (3) Mitre's a pplication to compel further response to it Sixth Set of Interrogatories is denied and (4) Mitre's application to preclude HBO from using the Cottingham declaration is denied. (Signed by Magistrate Judge Henry B. Pitman on 1/13/2015) Copies Sent By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MITRE SPORTS INTERNATIONAL
LIMITED,

:
:

08 Civ. 9117 (GBD)(HBP)

:

ORDER

Plaintiff,
-against:
HOME BOX OFFICE, INC.,
:
Defendant.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I write to resolve four of the remaining discovery
disputes in this matter.

I.

HBO's Objections to
the Special Master's
Decision and Order

On October 14, 2010, Devin F. Ryan, Esq., the Special
Master in this matter, issued a Decision and Order addressing
certain disputes between the parties concerning matters of
privilege and work product and concluded that each side's motion
to compel should be granted in part and denied in part (Docket
Item 163) (the "Order").

Plaintiff, Mitre Sports International

Limited ("Mitre") has not objected to the Order.

Defendant, Home

Box Office, Inc. ("HBO"), has filed objections to the Order

"insofar as the Order denies HBO's request to compel [Mitre] to
produce further deposition testimony from Kam Raghavan and
[certain documents]" (Memorandum of Law of Defendant Home Box
Office, Inc. in Support of Its Objection to the Special Master's
October 14, 2010 Order, dated November 4, 2010 (Docket Item 169)
("HBO's Mem.") at 1).

After reviewing the relevant portions of

the Order de novo, see Fed.R.Civ.P. 53(f)(3)-(4), HBO's objections are overruled.
The reader's familiarity with Special Master Ryan's
Order and the Opinion and Order of the Honorable George B.
Daniels, United States District Judge, resolving the parties'
motions for summary judgment, Mitre Sports Int'l Ltd. v. Home Box
Office, Inc., 22 F. Supp. 3d 240 (S.D.N.Y. 2014), is assumed.
HBO's objections concern Mitre's assertion of the work-product
doctrine and the United Kingdom's litigation privilege in response to document requests and deposition questions concerning
Mitre's investigation of the subject matter of a segment distributed by HBO which asserted that Mitre used child labor to stitch
soccer balls (the "Segment").

HBO does not argue that documents

and testimony are not protected by the work-product doctrine, nor
does it claim the doctrine should be pierced because it has
substantial need for the material.

Rather, HBO argues that Mitre

waived work-product protection by (1) permitting James Boocock to
2

testify to certain matters concerning Mitre's investigation and
designating that testimony as its 30(b)(6) testimony and (2) by
attaching the products of its investigation to its complaint (HBO
Mem. at 2).

HBO concedes that a decision adverse to it on the

issue of waiver renders its other arguments moot (see Reply
Memorandum of Law of Defendant Home Box Office, Inc. in Further
Support of Its Objection to the Special Master's October 14, 2010
Order, dated November 18, 2010 (Docket Item 171) ("HBO's Reply")
at 2 n.3).
Although I reach the same result as the Special Master,
I do so by a slightly different (but closely parallel) route.
HBO first argues that Boocock's testimony concerning
his investigation of the allegations in the Segment operates as a
subject-matter waiver of any privilege that Mitre may have
otherwise had with respect to its investigation.

For purposes of

the discussion herein, I assume that Boocock's testimony concerning the investigative steps he took and the content of the
statements made to him in interviews did disclose material
protected by the work-product doctrine.

See generally GenOn

Mid-Atlantic, LLC v. Stone & Webster, Inc., 11 Civ. 1299
(HB)(FM), 2011 WL 5439046 at *6 (S.D.N.Y. Nov. 10, 2011) (Maas,
M.J.) ("[T]he work product privilege extends beyond documents
prepared by counsel and includes those prepared by a client in
3

the course of preparation for possible litigation."); Sec. &
Exch. Comm'n v. Strauss, 09 Civ. 4150 (RMB)(HBP), 2009 WL 3459204
at *6 (S.D.N.Y. Oct. 28, 2009) (Pitman, M.J.).
Although the Special Master did not rely on it,
Fed.R.Evid. 502(a) addresses the precise issue of when a partial
disclosure of protected information results in a waiver of
undisclosed information.
The following provisions apply, in the circumstances
set out, to disclosure of a communication or information covered by the attorney-client privilege or
work-product protection.
(a) Disclosure Made in a Federal Proceeding or to
a Federal Office or Agency; Scope of a Waiver.
When the disclosure is made in a federal proceeding or to a federal office or agency and waives
the attorney-client privilege or work-product
protection, the waiver extends to an undisclosed
communication or information in a federal or state
proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject
matter; and
(3) they ought in fairness to be considered
together.[1]
The critical issue here is whether the third element of
Rule 502(a) is present, to wit, whether fairness requires the

1

Rule 502 was enacted on September 19, 2008, approximately
one month before this action was commenced. See Pub. L. No. 11032, § 1, 122 Stat. 3537-38 (2008).
4

disclosure of additional information.

The Advisory Committee

notes and the extant case law teach that the answer to this
question is "no."
The Advisory Committee notes to Rule 502 provide, in
pertinent part:
The rule provides that a voluntary disclosure in a
federal proceeding or to a federal office or agency, if
a waiver, generally results in a waiver only of the
communication or information disclosed; a subject
matter waiver (of either privilege or work product) is
reserved for those unusual situations in which fairness
requires a further disclosure of related, protected
information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of
the adversary. See, e.g., In re United Mine Workers of
America Employee Benefit Plans Litig., 159 F.R.D. 307,
312 (D.D.C. 1994) (waiver of work product limited to
materials actually disclosed, because the party did not
deliberately disclose documents in an attempt to gain a
tactical advantage). Thus, subject matter waiver is
limited to situations in which a party intentionally
puts protected information into the litigation in a
selective, misleading and unfair manner. It follows
that an inadvertent disclosure of protected information
can never result in a subject matter waiver. See Rule
502(b). The rule rejects the result in In re Sealed
Case, 877 F.2d 976 (D.C. Cir. 1989), which held that
inadvertent disclosure of documents during discovery
automatically constituted a subject matter waiver.
(emphasis added).
As Magistrate Judge Francis explained in Freedman v.
Weatherford Int'l Ltd., 12 Civ. 2121 (LAK)(JCF), 2014 WL 3767034
at *3 (S.D.N.Y. July 25, 2014):
Subject matter waiver is reserved for the rare
case where a party either places privileged information
5

affirmatively at issue, or attempts to use privileged
information as both a sword and a shield in litigation.
Favors v. Cuomo, 285 F.R.D. 187, 198–99 (E.D.N.Y.
2012); Shinnecock Indian Nation v. Kempthorne, 652 F.
Supp. 2d 345, 365–66 (E.D.N.Y. 2009) (collecting
cases). Both attorney-client privilege and work product protection may be waived on a subject-matter basis.
See Favors, 285 F.R.D. at 200. Subject matter waiver
is justified "when a party uses an assertion of fact to
influence the decisionmaker while denying its adversary
access to privileged materials potentially capable of
rebutting the assertion." In re County of Erie, 546
F.3d 222, 229 (2d Cir. 2008) (internal quotation marks
omitted). This is necessary in order to "void prejudice to the adversary party and 'distortion of the
judicial process' that may result from selective disclosure." Robbins & Myers, Inc. v. J.M. Huber Corp.,
274 F.R.D. 63, 94–95 (W.D.N.Y.2011) (quoting In re von
Bulow, 828 F.2d 94, 101 (2d Cir. 1987)); see also
United States v. Treacy, No. S208 CR 366, 2009 WL
812033, *3 (S.D.N.Y. March 24, 2009) (subject-matter
waiver of attorney-client privilege necessary "in order
to prevent a selective and misleading presentation of
evidence to the disadvantage of the adversary").
(Emphasis added).

See also Shinnecock Indian Nation v.

Kempthorne, 652 F. Supp. 2d 345, 365-67 (E.D.N.Y. 2009); Falise
v. Am. Tobacco Co., 193 F.R.D. 73, 85 (E.D.N.Y. 2000) (Weinstein,
D.J., affirming Gold, M.J.).
Boocock's answering HBO's deposition questions did not
put Mitre's investigation in issue for the simple reason that
providing such testimony was not an attempt by Mitre to use
protected information to influence a decision maker.

In many

cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a

6

small fraction of the deposition testimony taken in a case is
cited in connection with a summary judgment motion or offered at
trial.

Thus, the mere fact that a party makes a partial disclo-

sure of privileged or protected information in a deposition does
not result in a subject-matter waiver because there is no use of
the testimony by the party holding the privilege.

In re Sims,

534 F.3d 117, 141 (2d Cir. 2008) ("Given that Sims cannot introduce any of his own deposition testimony at trial . . . Sim's
deposition testimony does not place respondents in a disadvantageous position at trial."); see also Swift Spindrift, Ltd. v.
Alvada Ins., Inc., 09 Civ. 9342 (AJN)(FM), 2013 WL 3815970 at *5*6 (S.D.N.Y. July 24, 2013) (Maas, M.J.) (disclosure of privileged material in discovery, without more, does not result a
subject-matter waiver).
The principal cases cited by HBO in support of its
waiver argument are either factually distinguishable or rely on a
waiver theory that Fed.R.Evid. 502 expressly rejects.

For

example, in In re Steinhardt Partners L.P., 9 F.3d 230, 235 (2d
Cir. 1993), the party asserting work-product protection had
produced the material in dispute to the Securities and Exchange
Commission in order to persuade it that no violation of the
securities laws had occurred.

Similarly, in United States v.

Nobles, 422 U.S. 225, 239 (1975), the Court found that an inves7

tigator's testimony at trial operated as a waiver of work-product
protection.

In contrast, Mitre has not used Boocock's testimony

in an effort to influence a decision maker.

Bowne of New York

City, Inc. v. AmBase Corp., 150 F.R.D. 465, 485 (S.D.N.Y. 1993)
(Dolinger, M.J.), relied in part on the broad, subject-matter
waiver theory that was endorsed in In re Sealed Case, 877 F.2d
976 (D.C. Cir. 1989), and that drafters of Rule 502 rejected.
See Falise v. Am. Tobacco Co., supra, 193 F.R.D. at 85 ("[S]ince
Bowne, courts in this Circuit have addressed claims of subject
matter waiver a number of times and have consistently examined
the issue in light of . . . fairness concerns . . . .").

Fi-

nally, Fullerton v. Prudential Ins. Co., 194 F.R.D. 100 (S.D.N.Y.
2000) (McMahon, D.J.), predates Rule 502, and its discussion of
the scope of a waiver resulting from the partial production of
work-product materials appears to be inconsistent with the terms
of Rule 502.
HBO's second argument concerning Boocock's testimony -that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this
result.

The authorities cited above teach that the critical

inquiry is whether protected information has been partially
disclosed to a decision maker in an effort to influence a decision.

A party's deposition testimony, whether from an individual
8

witness or a 30(b)(6) witness, does not constitute such a use.
Although HBO argues that Mitre is trying to utilize the workproduct doctrine as both a sword and a shield, it has not cited
any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the workproduct doctrine as a sword.2
Similarly, Mitre's attaching the products of its
investigation to its complaint did not put its investigation in
issue.
Mitre's investigation is not relevant to any of the
issues in this action, and cannot, therefore, be in issue in this
action.

Judge Daniels' decision denying HBO's motion for summary

judgment identified three issues of fact remaining in this
matter:

(1) whether the Segment was subject to defamatory

meaning, (2) whether the Segment was substantially true and (3)
whether HBO was grossly irresponsible in producing the Segment.
Mitre Sports Int'l Ltd. v. Home Box Office, Inc., supra, 22 F.
Supp. 3d at 254-56.

Mitre's efforts to investigate the allega-

tions in the Segment does not illuminate any of these issues.

2

I am aware that subsequent to Boocock's deposition, the
parties have submitted voluminous materials in connection with
their motions for summary judgment. However, HBO does not cite
any instances in which Mitre has made any affirmative use of
Boocock's testimony in connection with these motions.
9

Whether Mitre's investigation was performed in a competent or
improper manner does not clarify the meaning of the Segment, the
truthfulness of the Segment or the nature of the investigation
HBO performed before disseminating the Segment.

If, for example,

the portions of the Segment suggesting that young children
stitched Mitre soccer balls was staged by the Segment's producers, no deficiencies in Mitre's investigation could alter that
fact or its impact on the outcome of the case.

Conversely, if

the Segment's producers were advised by multiple, reliable
sources that young children did stitch Mitre soccer balls and
young children were, in fact, stitching Mitre soccer balls, no
amount of diligence in Mitre's investigation could result in
HBO's liability.

Because the nature of Mitre's investigation is

irrelevant to the issues in the case, it would be impossible for
Mitre to put the nature of its investigation in issue.
HBO argues that Mitre's investigation is in issue
because HBO believes that Mitre will use the fact that it advised
HBO of the results of the investigation prior to the distribution
of the Segment in an effort to establish actual malice on the
part of HBO (HBO's Reply at 1).

Whatever traction this argument

may have formerly had was lost after Judge Daniels' decision on
the parties' summary judgment motions.

Judge Daniels granted

Mitre partial summary judgment, finding that it was not a public
10

figure.

Mitre Sports Int'l Ltd. v. Home Box Office, Inc., supra,

22 F. Supp. 3d at 256.

Because Mitre is not a public figure,

actual malice is not an element of its defamation claim.

Nelson

v. Globe Int'l, Inc., 626 F. Supp. 969, 980 (S.D.N.Y. 1986)
(Goettel, D.J.); see Biro v. Conde Nast, 963 F. Supp. 2d 255, 276
(S.D.N.Y. 2013) (Oetken, D.J.).

Thus, there is no issue of

actual malice in this action.
The Special Master correctly observed that there is a
distinction between the results of the investigation and the
investigation itself and that reliance on the facts learned in
the investigation, when offered from a source other than the
investigator, does not put the investigation in issue.

See

Robinson v. Time Warner, Inc., 187 F.R.D. 144, 146-47 (S.D.N.Y.
1999) (Sweet, D.J.).

The nature of a party's investigation is

most frequently in issue in certain employment discrimination
actions.

An employer confronted with a claim of a hostile work

environment may be able to escape liability if it can show "(a)
that the employer exercised reasonable care to prevent and
correct promptly any . . . harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise."

Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 765 (1998); accord Faragher v. City of
11

Boca Raton, 524 U.S. 775, 807 (1998).

When an employer asserts

the so-called Faragher/Ellerth defense, the adequacy of its
investigation is relevant to the issue of the adequacy of its
corrective actions.

In this case, however, the adequacy of

plaintiff's investigation simply has no relationship to any of
the issues in the case.
In support of that aspect of its waiver argument that
is predicated on the complaint, HBO relies on Duran v. Andrew,
Misc. No. 09-730 (HHK/AK), 2010 WL 1418344 (D.D.C. Apr. 5, 2010).
Duran appears to have little relevance to the facts of this
matter.

In Duran, the investigation in issue was performed at

the direction of a non-party.

The plaintiff touted the results

of the investigation as proof that the allegedly defamatory
statements in issue were false, and the court found that defendant had established substantial need for the materials in issue.
2010 WL 1418344 at *6-*7.

In this case, although plaintiff

relies on the facts gathered during its investigation as proof
for its position, it does not rely on the fact of the investigation as proof of its position.
Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public

12

relations reasons than legal reasons,3 Mitre's pleading does not
put the investigation in issue.

The complaint is not evidence,

and Mitre cannot offer it as such.

Capital One Nat'l Ass'n v.

48-52 Franklin, LLC, 12 Civ. 3366 (LGS), 2014 WL 1386609 at *9
(S.D.N.Y. Apr. 8, 2014) (Schofield, D.J.); Butler v. Coca-Cola
Refreshments USA, Inc., 12 Civ. 1791 (BMC), 2013 WL 3324995 at *2
n.2 (E.D.N.Y. July 1, 2013); Newton v. City of New York, 640 F.
Supp. 2d 426, 448 (S.D.N.Y. 2009) (Scheindlin, D.J.).

Thus, the

complaint does not constitute a testimonial use of either the
investigation or the products of the investigation and does not
put the investigation in issue.
Finally, the individuals whose statements appear in the
complaint were deposed by the parties in India (Declaration of
Jason Enzler, Esq., dated November 11, 2010, ¶¶ 16, 19).

To the

extent these individuals' statements will be used at trial, the
source will be the deposition testimony and not the statements
annexed to or contained in the complaint.

3

Thus, it does not

"[A] complainant is not required to plead evidence."
Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.
1974), overruled on other grounds, Virginia Bankshares, Inc. v.
Sandberg, 501 U.S. 1083 (1991); accord In re Sterling Foster &
Co. Sec. Litig., 222 F. Supp. 2d 216, 280 (E.D.N.Y. 2002); In re
Blech Sec. Litig., 928 F. Supp. 1279, 1290 (S.D.N.Y. 1996)
(Sweet, D.J.).
13

appear that either side will be able to make use of the hearsay
statements attached to the complaint.
Accordingly, for all the foregoing reasons, HBO's
objections to the Special Master's Decision and Order are overruled.

II.

Location of the Continued
Raghavan Deposition

HBO appears to move to compel Mitre to produce Kam
Raghavan in the District for the continuation of her deposition.4
The motion arises out of a stipulation between the parties
pursuant to which HBO cut short its questioning of Raghavan in
order to allow her to take a certain flight back to India in
return for Mitre's agreement to produce her in New York if the
continuation of her deposition was necessary.
In light of the ruling in the preceding section, it is
not clear that HBO still has additional questions it can pose to

4

HBO's letter concerning this issue appears to be
inconsistent as to whether HBO is seeking this relief. At page
one, the letter states, "HBO is not making a motion to compel Ms.
Raghavan to appear for a deposition in New York. HBO is,
instead, only responding to [Mitre's] statement that it will not
live up to its agreement . . . ." At page two of the same
letter, HBO states, "Mitre should be compelled to follow through
on its own representation made on December 16, 2009, and bring
Ms. Raghavan back to New York to continue her deposition" (Letter
from Katherine M. Bolger, Esq. to the undersigned, dated October
20, 2010, at 1, 2).
14

Raghavan, and, if so, how much time HBO needs to pose those
additional questions.

Although I agree that Mitre is bound by

its stipulation to produce Raghavan in New York for the continuation of her deposition,5 common sense teaches that it would be
irrational to compel an individual to travel halfway around the
world for what may be one half hour of questioning.
I conclude that unless HBO has more than five hours of
additional questioning for Raghavan, her deposition should be
continued via video link, the cost of which is to be borne by
Mitre.

IF HBO has more than five hours of relevant, non-repeti-

tive questions, Mitre is directed to produce her in New York for
the continuation of her deposition.

III.

Mitre's Application to
Compel Further Responses to
Its Sixth Set of Interrogatories

Mitre seeks to compel further answers to its Sixth Set
of Interrogatories.

5

Mitre claims that HBO has failed to negotiate in good faith
with respect to the continuation of the Raghavan deposition and
that that failure relieves Mitre of its obligation to produce
Raghavan in New York. The only evidence of bad faith cited by
Mitre is HBO's alleged insistence that Raghavan's deposition be
continued before the Special Master issued his decision. Given
the aggressive positions both sides have taken in discovery,
Mitre has not established bad faith on the part of HBO.
15

Mitre's Sixth Set of Interrogatories consists of two
questions and seeks information concerning where, when and how
HBO acquired certain soccer balls that were depicted in the
Segment and what efforts, if any, HBO took to ensure that the
balls were not counterfeit.

HBO objected to the interrogatories

on the ground that they violated Local Civil Rule 33.3 and were
defective in several other respects.

Nevertheless, HBO provided

substantial information in response to the interrogatories.
Local Civil Rule 33.3 provides:
(a) Unless otherwise ordered by the Court, at the
commencement of discovery, interrogatories will be
restricted to those seeking names of witnesses with
knowledge of information relevant to the subject matter
of the action, the computation of each category of
damage alleged, and the existence, custodian, location
and general description of relevant documents, including pertinent insurance agreements, and other physical
evidence, or information of a similar nature.
(b) During discovery, interrogatories other than
those seeking information described in paragraph (a)
above may only be served (1) if they are a more practical method of obtaining the information sought than a
request for production or a deposition, or (2) if
ordered by the Court.
(c) At the conclusion of other discovery, and at
least 30 days prior to the discovery cut-off date,
interrogatories seeking the claims and contentions of
the opposing party may be served unless the Court has
ordered otherwise.
The interrogatories in issue clearly go beyond the
scope of subparagraph (a), and Mitre does not claim they are

16

contention interrogatories within the meaning of subparagraph
(c).

Mitre's only justification for the interrogatories is that

they are a more practical method of obtaining the information in
issue.
The parties framed the issue with respect to Mitre's
Sixth Set of Interrogatories in three letters:

(1) the letter of

Ross Fisher, Esq., dated January 7, 2011, (2) the letter of Slade
R. Metcalf, Esq., dated January 13, 2011 and (3) the letter of
Jean Kim, Esq., dated January 24, 2011.

Mitre's argument that

the interrogatories are a more efficient method of obtaining the
information was first raised in its reply letter, and is, therefore, not properly asserted.

"This Circuit has made clear it

disfavors new issues being raised in reply papers."

Rowley v.

City of New York, 00 Civ. 1793 (DAB), 2005 WL 2429514 at *5
(S.D.N.Y. Sept. 30, 2005) (Batts, D.J.), citing Keefe v. Shalala,
71 F.3d 1060, 1066 n.2 (2d Cir. 1995), Knipe v. Skinner, 999 F.2d
708, 711 (2d Cir. 1993), Nat'l Labor Relations Bd. v. Star Color
Plate Serv., 843 F.2d 1507, 1510 n.3 (2d Cir. 1988), United
States v. Letscher, 83 F. Supp. 2d 367, 377 (S.D.N.Y. 1999)
(Koeltl, D.J.), Domino Media, Inc. v. Kranis, 9 F. Supp. 2d 374,
387 (S.D.N.Y. 1998) (Kaplan, D.J.) and Playboy Enters., Inc. v.
Dumas, 960 F. Supp. 710, 720 (S.D.N.Y. 1997) (Kaplan, D.J.).

17

Moreover, HBO did not merely object to the interrogatories; rather, it provided substantial information concerning
where the balls were purchased and the steps taken to ensure that
the balls were not counterfeit.

Although the information given

in the interrogatory answers was not specific as to each of the
27 balls HBO purchased, the interrogatory answers did refer, by
serial number, to 106 documents and two DVDs produced by HBO
which purport to contain relevant information.

Mitre does not

address whether those documents contain the information it now
seeks.
In addition, Mitre has not demonstrated that interrogatories are a more practical method of obtaining the information.
Interrogatories are frequently found to be a more practical
discovery device when the inquiring party seeks information about
numerous, specific transactions that do not require narrative
answers.

For example, in In re Weatherford Int'l Sec. Litig., 11

Civ. 1646 (LAK)(JCF), 2013 WL 5788680 (S.D.N.Y. Oct. 28, 2013)
(Francis, M.J.), interrogatories were found to be a more practical discovery tool where the inquiring party sought, for a fiveyear period, (1) the dates of numerous original accounting
entries and adjustments, (2) the names of the persons who were
involved in or reviewed the original entries and adjustments, (3)
the amount of each original entry and adjustment and (4) the
18

effect of each adjustment on the corporation's tax expenses.
2013 WL 5788680 at *3.

In that case, Magistrate Judge Francis

found that interrogatories were a more practical vehicle with
respect to the first three categories of information because (1)
the interrogatories could be answered with short simple responses
and did not require long, narrative explanations and (2) it was
unlikely that a witness could reliably retain information concerning the details of a large number of financial transactions
occurring over five years.

2013 WL 5788680 at *3; see also

E*Trade Fin. Corp. v. Deutsche Bank, AG, 05 Civ. 902 (RWS), 2006
WL 3267267 at *1 (S.D.N.Y. Nov. 13, 2006) (Sweet, D.J.) (interrogatories are more practical where information can be provided
by short, simple responses and the interrogatories do not require
long narrative responses).
Although the transactions in issue here -- a maximum of
276 -- is not de minimis, it is not so large that a witness
cannot reliably recall the detains of the transactions.

In

addition, inquiry into the steps taken by HBO to ensure that the
balls it purchased were not counterfeit does require narrative
answers.

Thus, Mitre has not shown that interrogatories are a

more practical method of obtaining the information in issue.

6

If HBO purchased multiple balls in a single transaction,
there would be fewer than 27 transactions.
19

IV.

HBO's Application to
Preclude HBO from Using
the Cottingham Declaration

Mitre also moves to preclude HBO from using the declaration of Martin Cottingham and the exhibits annexed thereto.

To

the extent this relief is sought pursuant to Fed.R.Civ.P.
37(c)(1), the motion is denied.

This does not, of course,

constitute a ruling that the Cottingham declaration is admissible.
At the outset, I note that it is not clear that this
dispute is still a live controversy.

The Cottingham declaration

deals exclusively with facts occurring in or before 1997 and
appears to be relevant only to the issue of whether Mitre is a
public figure.

Because Judge Daniels has granted summary judg-

ment in favor of Mitre on this issue and has held that Mitre is
not a public figure,7 it's not clear whether the Cottingham
declaration relates to any factual matter that is still in issue.
Nevertheless, I shall address the merits of the dispute on the
assumption that HBO will attempt to use the Cottingham declaration for some other purpose.

7

Judge Daniels' decision does not rely on or even cite the
Cottingham declaration.
20

According to his declaration, Cottingham is a writer
who formerly worked for an entity named Christian Aid.

As part

of his duties for Christian Aid, Cottingham investigated the use
of child labor in the manufacture of sporting goods in India and
Pakistan and authored an article on the subject in 1997; the
article mentions Mitre and other manufacturers of sporting goods.
Cottingham also participated in the production of two videos for
Christian Aid dealing with the same subjects.

Cottingham's

declaration indicates that his most recent involvement with the
subject of child labor occurred in 1997 -- nine years before the
Segment was broadcast.
Mitre seeks to bar the use of the Cottingham declaration pursuant to Fed.R.Civ.P. 37(c)(1) on the ground that HBO did
not disclose Cottingham as a potential witness in its disclosures
pursuant to Fed.R.Civ.P. 26(a)(1).

There is no dispute that HBO

did not list Cottingham in its 26(a)(1) disclosures or in any
formal supplementation of its 26(a)(1) disclosure.

Relying on

Fed.R.Civ.P. 26(e)(1)(A),8 HBO argues that its identification of

8

Rule 26(e)(1)(A) provides:
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure
under Rule 26(a) -- or who has responded to an
interrogatory, request for production, or request
(continued...)
21

Cottingham as a potential witness in discovery obviated the need
for a more formal supplementation.

Specifically, HBO notes that

Cottingham was identified in a Request for International Judicial
Assistance Pursuant to the Hague Convention that was served and
submitted to Judge Daniels in August 2009 (the "Hague Request").
The Hague Request contains an Appendix entitled "List of Individuals to Be Examined and the Subject Matter of the Information to
be Provided."

The Appendix lists Cottingham, provides his

address and telephone numbers and contains the following description of the subject matter of his proposed testimony:
Mr. Cottingham will provide information regarding
the Christian Aid report published in or about 1997,
authored by Mr. Cottingham, that exposed the use of
child labor by Mayor and Company. Mr. Cottingham will
also provide information on his interview with AP
Television News in 1997 regarding the use of child
labor to stitch soccer balls in which he stated "Christian Aid believes that companies like Umbro and Mitre
and Adidas are big enough to be able to pay decent
wages and offer security of employment to adults in
India so that fewer parents are pressurized into putting their children to work."

8

(...continued)
for admission -- must supplement or correct its
disclosure or response:
(A) in a timely manner if the party learns
that in some material respect the disclosure
or response is incomplete or incorrect, and
if the additional or corrective information
has not otherwise been made known to the
other parties during the discovery process or
in writing . . . .
22

(Letter to from R. Brian Black, Esq. to the undersigned, dated
March 18, 2011, Ex. 1, app. A at 1).

Despite Judge Daniels'

signing the Hague Request, Cottingham's deposition was never
taken.

HBO also relies on its having submitted Cottingham's

report as an exhibit in support of a motion HBO filed for partial
summary judgment in August 2009 as eliminating the need for
formal supplementation of its 26(a)(1) disclosures (Declaration
of Katherine M. Bolger, Esq., dated August 28, 2009 (Docket Item
47) ("Bolger Declaration"), Ex. X).
In reply, Mitre argues that the reference to Cottingham
in the Hague request was insufficient supplementation.
I conclude that HBO should not be precluded from using
Cottingham's declaration based on its failure to identify him in
a formal Rule 26(a)(1) disclosure.

Although the Court of Appeals

has not identified the nature of the informal supplementation
that is sufficient to satisfy Rule 26(a)(1) and (e)(1)(A), it has
unequivocally held that preclusion as a result of a Rule 26(a)
violation is not automatic, Design Strategy, Inc. v. Davis, 469
F.3d 284, 297-98 (2d Cir. 2006), and that preclusion is a "harsh
remed[y] [that] should be imposed only in rare situations,"
Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir.
1988).

I conclude that Cottingham was sufficiently disclosed in

the Hague Request and the Bolger Declaration that there was no
23

need for HBO to serve a formal supplement to its Rule 26(a)(1)
disclosures.

Although the Hague Request was not denominated as a

supplement to HBO's Rule 26(a)(1) disclosures, it literally
provided all the information required by Rule 26(a)(1)(A)(i).9
The fact that this information was disclosed in a Hague Request
submitted by HBO and the additional fact that HBO had submitted
Cottingham's article in support of its motion for summary judgment were clear indications that HBO had an interest in calling
Cottingham as a witness.

To require more comes close to exalting

form over substance.
The case on which Mitre places its principal reliance
-- Fleming v. Verizon New York Inc., 03 Civ. 5639 (WHP), 2006 WL
2709766 at *8-*9 (S.D.N.Y. Sept. 22, 2006) (Pauley, D.J.) -- is
factually distinguishable.

The issue in Fleming was whether the

affidavits of four witnesses who had not been identified in
plaintiff's 26(a)(1) disclosures could be considered in connection with defendant's motion for summary judgment.

It appears

that two of the witnesses had never been identified in any manner
and that the remaining two were merely mentioned at a deposi-

9

Rule 26(a)(1)(A)(i) requires disclosure off "the name and,
if known, the address and telephone number of each individual
likely to have discoverable information -- along with the
subjects of that information -- that the disclosing party may use
to support its claims or defenses, unless the use would be solely
for impeachment . . . ."
24

tion.10

As noted above, the Hague Request provided far more

information about Cottingham than the plaintiff provided about
the witnesses in Fleming; the Hague Request in this case provided
everything that Rule 26(a)(1) requires.
Finally, in the eight years since Fleming was decided,
a number of judges and commentators have held that identification
of potential witnesses through deposition testimony obviates the
need for a formal supplementation to Rule 26(a)(1) disclosures.
White v. City of Middletown, 3:11-CV-00747 (CSH), 2014 WL 4437721
at *8 (D. Conn. Sept. 9, 2014) (Haight, D.J.); BanxCorp v. Costco
Wholesale Corp., 978 F. Supp. 2d 280, 323 (S.D.N.Y. 2013) (Karas,
D.J.); Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 73 (E.D.N.Y.
2012); Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 727
(S.D.N.Y. 2011) (McMahon, D.J.), aff'd in part, vacated in part

10

It appears that very little information was provided
concerning these two witnesses at plaintiff's deposition:
Similarly, this Court finds unpersuasive Fleming's
argument that, because the declarants were all Verizon
employees and she mentioned two of their names at her
deposition, Defendant could have deposed them at any
time. Verizon is a large corporation with thousands of
employees, and Fleming admits that several of the
declarants did not even work directly with her. (Mar. 1
Tr., at 6.) Absent the disclosure of the declarants'
identities under Rule 26(a), it would be unreasonable
to expect Verizon to depose them.
1006 WL 2709766 at *9.
25

on other grounds, 726 F.3d 119 (2d Cir. 2013), cert. dismissed,
135 S. Ct. 42 (2014); 8A Charles A. Wright, Arthur R. Miller,
Richard L. Marcus, Federal Practice & Procedure § 2049.1 at 313
(3rd ed. 2010).

Thus, Fleming may be limited to its specific

facts.
Although I conclude that HBO is not precluded by Rule
37(c)(1) from using the Cottingham declaration, I am not ruling
on its admissibility.

In addition to a serious question concern-

ing its relevance, it is hearsay and appears to contain hearsay
within hearsay.

I express no opinion whether the declaration or

the attachments thereto will be admissible at trial.

V.

Summary

Accordingly, for all the foregoing reasons, (1) HBO's
objections to the Special Master's Decision and Order are overruled; (2) HBO's application to compel Mitre to produced Kam
Raghavan in the District for the continuation of her deposition
is denied unless HBO has more than five hours of questioning for
Raghavan; if HBO has less than five hours of questions for
Raghavan Mitre is to make her available for deposition via video
link at Mitre's expense; (3) Mitre's application to compel
further response to it Sixth Set of Interrogatories is denied and

26

(4) Mitre's application to preclude HBO from using the Cottingham
declaration is denied.
Dated:

New York, New York
January 13, 2015
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
Lloyd E. Constantine, Esq.
Jean Kim, Esq.
Ankur Kapoor, Esq.
Samuel H. Rikkers, Esq.
David A. Scupp, Esq,
Constantine Cannon, LLP
9th Floor
335 Madison Avenue
New York, New York 10017
Jason J. Enzler, Esq.
Constantine Cannon, LLP
lOth Floor
1627 Eye Street, N.W.
Washington, D.C.
20006
Namita Chadha, Esq.
Chadha & Company
S-237, Greater Kailasha II
New Delhi, India 110 048
India

27

Adam J. Podoll, Esq.
Allison B. Jones, Esq.
Dane H. Butswinkas, Esq.
Kevin T. Baine, Esq.
Nicholas G. Ganse, Esq.
Masha Hansford, Esq.
Thomas G. Hentoff, Esq.
Williams & Connolly LLP
725 Twelfth Street, N.W.
Washington, D.C.
20005
Stephanie S. Abrutyn, Esq.
Home Box Office, Inc.
Litigation Department
9th Floor
1100 Avenue of the Americas
New York, New York 10036
Robert L. Begleiter, Esq.
Schlam Stone & Dolan LLP
26 Broadway
New York, New York 10004
Katherine M. Bolger, Esq.
Levine Sullivan Koch & Schulz, LLP
Suite 1000
321 West 44th Street
New York, New York 10036

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