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Yash Raj Films v. Kumar

October 25, 2007

YASH RAJ FILMS (USA), PLAINTIFF,
v.
RAKESH KUMAR ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge

MEMORANDUM AND ORDER

On June 5, 2007, the undersigned conducted a conference regarding various pending discovery motions in this copyright infringement action. At the conference, the court made several discovery rulings, including granting plaintiff's motion to quash the subpoenas served on plaintiff's counsel (docket no. 83) on the basis that "Defendants have not demonstrated that they are unable to obtain the information sought from plaintiff's counsel from other individuals, such as plaintiff's employees and other witnesses to the seizures." (See Minute Entry for proceedings held on 6/5/07.)

Defendants timely filed written objections to the court's ruling, pursuant to Fed. R. Civ. P. 72, before the Honorable Frederic Block, the District Judge supervising this matter. In their submission, defendants included an additional declaration by defendant Bela Kumar, dated June 14, 2007 (the "Kumar 6/14/07 Decl."), in which Ms. Kumar provided further facts not previously raised in her prior declaration dated April 17, 2007 (the "Kumar 4/17/07 Decl."). (See docket nos. 91 (attaching Kumar 4/17/07 Decl.) and 94 (attaching Kumar 6/14/07 Decl.).) Defendants offered no explanation as to why they did not submit the June 14, 2007 Kumar Declaration earlier when this court first considered the plaintiff's motion, other than a sudden refreshing of Ms. Kumar's recollection as she was being prepared for her deposition. Judge Block considered the defendants' objections and found that "[t]here is nothing . . . to suggest that Magistrate Judge Matsumoto's grant of plaintiff's motion to quash subpoenas served on its counsel was clearly erroneous or contrary to the law." (Docket no. 100, 8/24/07 Order at 3.) Judge Block directed defendants to bring the additional facts before the undersigned for consideration within ten days of entry of his order. (Id. at 4.)

On September 10, 2007, defendants filed a motion for reconsideration*fn1 of the court's June 7, 2007 order granting plaintiff's motion to quash the subpoenas served on its counsel. (See docket no. 104.) Plaintiff submitted opposing declarations from its counsel and Lieutenant John Mendez of the New York Police Department ("NYPD"). (See docket no. 108.) Having considered the additional submissions by the parties, including Ms. Kumar's June 14, 2007 declaration, the court denies the defendants' motion for reconsideration.

I. BACKGROUND

The subpoenas at issue in defendants' motion for reconsideration were served by defendants on plaintiffs' attorneys, William Poppe, Esq. ("Poppe"), Megha Bhouraskar, Esq. ("Bhouraskar") and the Managing Partner of Poppe and Bhouraskar's law firm, Poppe & Bhouraskar, LLP. The subpoenas seek all non-privileged and non-work product records and documents related to four topics:

(1) plaintiff's counsel's prosecution of the copyright registrations for 109 of plaintiff's films, listed in Exhibit A of the complaint;

(2) litigation by plaintiff's counsel related to any of plaintiff's films listed in Exhibit A of the complaint;

(3) the March 12, 2003 raid conducted by the New York Police Department on three locations, including defendants' home; and

(4) the representation by plaintiff's counsel of any of thirty-four individuals and entities, as it relates to the films listed in Exhibit A of the complaint.

The subpoenas also seek the depositions of plaintiff's counsel. (See docket no. 83, Exhs. A-C.)

The defendants' motion for reconsideration focuses on plaintiff's counsel's presence during the March 12, 2003 NYPD seizure of allegedly infringing DVDs and other materials from three locations, including the defendants' residence and Rakesh Kumar's business locations. In her June 14, 2007 declaration, Ms. Kumar states that her memory as to the events on March 12, 2003 was "refreshed" in connection with her preparation for her June 12, 2007 deposition, but does not explain what documents or evidence prompted her memory to be refreshed. (Kumar 6/14/07 Decl. ¶ 7.) She states that she was not involved in her husband Rakesh Kumar's video business, but she was present on March 12, 2003 when the NYPD conducted a search of her and her husband's residence. (Id. ¶¶ 4, 14, 15.)

Ms. Kumar states that during the search, the NYPD seized various items from her home and placed them in the living room of her home. (Id. ¶ 28). She states that a man and a woman whom she later learned were Mr. Poppe and Ms. Bhouraskar were present in her home during the search and seizure. (Id. ¶¶ 30, 31.) During the search, a package containing DVDs of Indian movies was delivered to her home. (Id. ¶ 32.) The package was delivered to the Kumar residence and addressed to Avatar Singh, a business colleague of her husband who, like her husband, was in the business of buying and selling Indian movies. (Id. ¶¶ 22, 23.) Ms. Kumar states that Mr. Singh frequently had packages delivered to the Kumars' home, and that he had come to the Kumar residence on the day of the search because he was expecting the package. (Id. ¶¶ 23, 24.)

According to Ms. Kumar, Mr. Poppe opened the package for Mr. Singh and threw its contents onto the living room floor, mixing the DVDs from the package with the items placed in the living room by the NYPD. (Id. ¶¶ 33-35.) Ms. Kumar claims that although she told Mr. Poppe not to mix the DVDs from the package with the other items, Mr. Poppe continued to do so. (Id. ¶¶ 36-38.) Ms. Kumar states that later that day, Mr. Poppe and Ms. Bhouraskar threatened her, telling her that ...


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