Desiste v. Sobande
ORDER: Accordingly, Plaintiff's renewed discovery request seeks documentation beyond the scope of the instant litigation. Plaintiff's request for additional fact discovery is therefore DENIED. SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/7/2021) (rro)
Case 1:20-cv-06947-KPF Document 35 Filed 09/07/21 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
20 Civ. 6947 (KPF)
KATHERINE POLK FAILLA, District Judge:
At the September 2, 2021 conference in this matter, Plaintiff renewed his
request for discovery related to monies received by Defendant following the
June 18, 2018 death of XXXTentacion (the “Artist”). Specifically, Plaintiff
maintained that he was entitled to discovery into any commissions earned by
Defendant post-June 18, 2018, that related to works released prior to the
Artist’s death. Defendant argued that any such monies were earned pursuant
to the June 28, 2018 management agreement between Defendant and
Cleopatra Bernard, the Artist’s mother (the “Bernard Agreement”), rather than
the January 28, 2017 management agreement between Defendant and the
Artist (the “Initial Management Agreement”). At the Court’s request, following
the conference, the parties made an in camera submission that included: (i) the
Bernard Agreement; (ii) the Initial Management Agreement; and (iii) transcripts
of Plaintiff’s and Defendant’s depositions. Having carefully reviewed these
materials and having considered the thoughtful arguments made by the parties
at the September 2, 2021 conference, the Court finds that Plaintiff is not
Case 1:20-cv-06947-KPF Document 35 Filed 09/07/21 Page 2 of 3
entitled to any further discovery into monies earned by Defendant following the
execution of the Bernard Agreement.
In reaching this decision, the Court took particular note of Defendant’s
deposition testimony that he entered into the Bernard Agreement based upon
his understanding — influenced in part by a discussion with counsel for the
Artist’s estate — that the Initial Management Agreement was no longer
operative. (See Sobande Dep. 208:24-212:15, 214:6-218:23). 1 Putting to the
side for the moment whether counsel’s statement was legally correct, it remains
the case that Defendant eschewed pursuing his rights under the Initial
Management Agreement, and concluded instead that it was necessary to
negotiate a new agreement with the Artist’s mother. Defendant further
understood that, following the execution of the Bernard Agreement, any
commissions he received that related to the Artist’s works (both works released
prior to and following the Artist’s death) would be earned pursuant to the
Bernard Agreement, rather than the Initial Management Agreement.
Under the terms of the parties’ alleged agreement, Plaintiff was entitled to
20% of the “gross receipts” received by Defendant “pursuant to the exclusive
Management Agreement between [Defendant] and Artist.” (Dkt. #1 at ¶ 22).
Plaintiff was not entitled to the “gross receipts” received by Defendant pursuant
to any other agreements, including the Bernard Agreement. Accordingly,
Counsel for Plaintiff contends that the statement of counsel for the Artist’s estate
constitutes hearsay that may not be considered by this Court. The Court understands
that the statement is not being admitted for its truth, but for the effect that it had on
Defendant’s state of mind and subsequent decisions. See generally United States v.
Quinones, 511 F.3d 289, 312 (2d Cir. 2007).
Case 1:20-cv-06947-KPF Document 35 Filed 09/07/21 Page 3 of 3
Plaintiff’s renewed discovery request seeks documentation beyond the scope of
the instant litigation. Plaintiff’s request for additional fact discovery is
Dated: September 7, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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