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Rowe Entertainment, et al. v. the William Morris Agency Inc.

November 8, 2012

ROWE ENTERTAINMENT, ET AL. PLAINTIFFS,
v.
THE WILLIAM MORRIS AGENCY INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION AND ORDER

On March 2, 2012, Leonard Rowe (hereinafter "Mr. Rowe"), proceeding pro se,moved pursuant to Rule 60 of the Federal Rules of Civil Procedure for relief from a February 7, 2005 judgment of this Court, Rowe Entm't, Inc., et al. v. William Morris Agency, Inc., et al., No. 98 CV 8272, 2005 WL 22833, at *87 (S.D.N.Y. Jan. 5, 2005), which has been affirmed on appeal, 167 F. App'x 227 (2d Cir. 2005), cert. denied, 549 U.S. 887 (2006). More than seven years after this Court entered judgment against him, Mr. Rowe seeks to reopen the case based on his claim that his former attorneys conspired with attorneys for Defendants William Morris Agency ("WMA"), Creative Artists Agency ("CAA"), and Renaissance Entertainment Inc. ("Renaissance") (collectively "the Booking Agency Defendants")to conceal and destroy vital evidence. Mr. Rowe alleges that e-mails of the employees of the Booking Agency Defendants "contained the word 'nigger' nearly 400 times," along with other racial slurs. (Aff. of Leonard Rowe in Supp. of Mot. ("Rowe Aff.") ¶¶ 5, 9, 11-12, Mar. 2, 2012.) Mr. Rowe claims that these e-mails "clearly demonstrated the racial animus of these defendants as it related to their contractual dealings with [P]laintiffs," but that his former attorneys conspired with Defendants to hide the evidence, thus committing fraud upon the Court. (Id. ¶ 5.) Mr. Rowe relies upon a single document ("Exhibit A") to support his motion.*fn1

Mr. Rowe's claim is meritless. First, although Rule 60(b)(2) of the Federal Rules of Civil Procedure allows the Court to reopen a case if the Court is presented with "newly discovered evidence," Exhibit A is by no means "newly discovered." Exhibit A is the same document that Plaintiffs submitted as Exhibit 31 in 2003 and 2004.*fn2 At that time, Plaintiffs, represented by the Florida law firm of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando (the "Gary Firm"),*fn3 filed the document in opposition to Defendants' motion for summary judgment. See Rowe, 2005 WL 22833, at *87. Therefore, Exhibit A/Exhibit 31 is not "newly discovered," and Mr. Rowe is not entitled to relief under Rule 60(b)(2). Moreover, Mr. Rowe filed his motion seven years after the entry of judgment. Even if he had provided "newly discovered evidence," his motion would be time-barred by the one year statute of limitations stated in Rule 60(c)(1) of the Federal Rules of Civil Procedure.

Nor has Mr. Rowe shown that he is entitled to reopen his case under Rules 60(b)(3), 60(b)(6), or 60(d)(3), the other three provisions of Rule 60 that might be applicable to his allegations. Rule 60(b)(3) allows the Court to grant relief from a judgment if the movant demonstrates by "clear and convincing evidence" that the opposing party engaged in misconduct. Fed. R. Civ. P. 60(b)(3) (emphasis added); see also Schiel v. Stop & Shop Co., Inc., No. 96 CV 1742, 2006 WL 2792885, at *6 (D. Conn. Sept. 6, 2006). Mr. Rowe has presented no evidence, let alone clear and convincing evidence, that Defendants or opposing counsel engaged in any misconduct. Furthermore, motions pursuant to Rule 60(b)(3) must be filed within one year of the date of judgment. Fed. R. Civ. P. 60(c)(1).

Rule 60(b)(6) allows the Court to reopen a case "for any other reason that justifies relief" provided that the Plaintiff demonstrates "extraordinary circumstances or extreme and undue hardship." Dow Jones & Co., Inc. v. WSJ Inc., No. 97 CV 7690, 1998 WL 2370, at *2 (2d Cir. 1998) (internal citation omitted); Fed R. Civ. P. 60(b)(6). Mr. Rowe's motion, however, has failed to set forth either extraordinary circumstances or extreme and undue hardship. Moreover, Rule 60(b)(6) claims must be filed "within a reasonable time" after the entry of judgment, as stated in Federal Rule of Civil Procedure 60(c)(1). In this Circuit, a reasonable time is within eighteen months of the entry of judgment, Maisonet v. Conway, No. 04 CV 2860, 2011 WL 317833, at *3 (E.D.N.Y. Jan. 31, 2011) (listing cases), unless the movant shows good cause for the delay or mitigating circumstances, Korelis v. Pennsylvania Hotel, No. 99 CV 7135, 1999 WL 980954, at * 1 (2d Cir. Oct. 8, 1999) (internal citation omitted). Despite having filed his motion seven years after the entry of judgment, Mr. Rowe's motion has neither set forth good cause for his delay nor any mitigating circumstances

Rule 60(d)(3) authorizes the Court to reopen a case if the movant provides "clear and convincing evidence" that fraud on the Court has been committed. Fed. R. Civ. P. 60(d)(3); see Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989); Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 396 (S.D.N.Y. 2010). Under Rule 60(d)(3), claims against a party's own counsel for fraud on the court are not subject to a statute of limitations.*fn4 See Fed. R. Civ. P. 60(d)(3). Mr. Rowe, however, has not provided any evidence that his own former attorneys, or anyone else, committed any fraud on the court, despite the fact that for the past seven years Mr. Rowe has had the clear opportunity to determine if any such fraud occurred.

In support of his present motion, Mr. Rowe relies on Exhibit 31/Exhibit A. Although Mr. Rowe promotes this document as a clear demonstration of Defendants' racial animus and irrefutable proof that a conspiracy existed between his former attorneys and Defendants' counsel, (see Rowe Aff. ¶ 5), Exhibit 31/Exhibit A is not the "smoking gun" that he portrays it to be. Exhibit 31/Exhibit A is "an unidentified and unauthenticated document," that was "not produced by Plaintiffs in discovery." Rowe, 2005 WL 22833 at *53 n.143. The document contains three columns, one with names, the next with words that could or could not be used in contexts indicating racial animus,*fn5 and the third with numbers.*fn6

The document, which apparently is a printout listing the number of times certain racially inflammatory words appeared in the e-mail accounts of certain employees of Defendants, does not distinguish between whether these words appeared in incoming or outgoing e-mails, does not describe the context in which the words appeared, and lists the computer identifications of employees, most of whom were not involved in Plaintiffs' concert promotion business and who were therefore irrelevant to Mr. Rowe's claim that these Defendants discriminated against the Plaintiffs (who constituted a group of black concert promoters) in arranging concerts for their clients.

Upon receiving Exhibit 31 with Plaintiffs' opposition to the Booking Agency Defendants' summary judgment motion, Defendants' attorneys sent repeated letter requests to Mr. Rowe's attorneys at the Gary Firm, asking them "to provide foundational information regarding Exhibit 31 or to produce hard copies of the underlying e-mails" purportedly referenced by it. Id. The Gary Firm refused. Id. The Court found that Plaintiffs failed "to present any evidence or argument to show that the e-mails [purportedly referenced in Exhibit 31] constituted utterances by employees of Defendants whose actions were material to the issues in this case." Id. Consequently, the Court determined that the document was too ambiguous to be of any assistance to the evidentiary determinations that the Court had to make and "disregard[ed] Exhibit 31 in its entirety as irrelevant material." Id.

Seven years later, Mr. Rowe attempts to resubmit the exact same document as proof that Defendants' counsel and his former attorneys conspired to sabotage his case, but he has failed to provide anything other than Exhibit 31/Exhibit A to support this claim, to cure the problems with this document that the Court identified in its 2005 judgment, or to address the Gary Firm's failure to provide the Booking Agency Defendants' with foundational information about Exhibit 31/Exhibit A and copies of the underlying e-mails. See id.

Consequently, Mr. Rowe has failed to substantiate the conclusory allegations he makes in his motion papers. This Court will not entertain such baseless accusations.

Most importantly, since 2003, Mr. Rowe, along with the Gary Firm, has had the clear opportunity to investigate the truth or falsity of the claim he now makes that his former attorneys committed a fraud on the court by hiding or deleting e-mail discovery, in violation of Rule 60(d)(3). In accordance with Magistrate Judge Francis' discovery protocol, Plaintiffs retained Electronic Evidence Discovery ("EED"), a Seattle, Washington-based electronic discovery expert, to create and search mirror images of Defendants' computer hard drives for e-mails to support the Plaintiffs' claims and to provide those e-mails to Plaintiffs' attorneys. Defendants' submissions confirm that EED had control of mirror images of Defendants' computer hard drives in order to comply with Plaintiffs' search requests. The documents that Mr. Rowe submitted in connection with this motion show that his former attorneys and the Gary Firm both paid fees on his behalf to EED. Therefore, if Mr. Rowe believed, as he now asserts, that his former attorneys had not provided his new attorneys with all of the relevant evidence in their possession, he or the Gary Firm at any time in the past seven years could have acquired copies directly from EED of whatever reports or e-mails were sent to his former attorneys, including any documents marked attorneys'-eyes-only. Indeed, if Plaintiffs' attorneys had hard copies of Defendants' employees' e-mails, they had to have been provided by EED. Instead, Mr. Rowe alleges, without any support, that the electronic discovery results were destroyed or hidden from him by his former attorneys.

Accordingly, Mr. Rowe's Rule 60 motion is denied as based on nothing more than hot air and paranoid suspicions, the truth or falsity of which he has had the power and the opportunity to investigate for the past seven years.

More detailed analysis of Mr. Rowe's arguments and of the law applicable to his motion follows.

I. The Underlying Litigation*fn7

A.Plaintiffs' Underlying Claim

On November 19, 1998, Mr. Rowe, three other African-American concert promoters, and the concert promotion companies they each owned commenced a lawsuit against eight talent and booking agency defendants and twenty-six concert promoter defendants. Plaintiffs claimed that Defendants had violated both the Sherman Antitrust Act, 15 U.S.C. § 1, and the Civil Rights Act, 42 U.S.C. §§ 1981, 1985(3), and 1986. (Pls.' Am. Compl. ("Am. Compl.") ¶¶ 2-3, 5, 12, 14-16, 18-25, 29-55, dated Aug. 9, 1999.) Specifically, Plaintiffs' Amended Complaint alleged, inter alia, that the Booking Agency Defendantsdiscriminated against Plaintiffs because "black concert promoters are systematically excluded from the promotion of concerts given by white performers . . . [and i]n addition, plaintiffs are regularly excluded from the promotion of concerts given by top-drawing black performers." (Am. Compl. ¶ 1.)

B.Attorney Representation of Plaintiffs

Plaintiffs were originally represented in this case on a contingent fee basis by attorneys Martin Roth Gold ("Mr. Gold") and Christine Lepera ("Ms. Lepera") of the firm Gold, Farrell & Marks. During the early stages of this litigation, the firm of Gold, Farrell & Marks merged into the firm of RubinBaum, LLP ("RubinBaum"). (Decl. of Raymond J. Heslin in Opp. to Mot. Pursuant to Fed. R. Civ. P. 60(b) ("Heslin Decl.") ¶ 5, May 14, 2012.) Subsequently, RubinBaum assigned attorneys Richard Primoff ("Mr. Primoff") and Carl Aron ("Mr. Aron") to join Mr. Gold and Ms. Lepera on Plaintiffs' legal team. (Decl. of Richard G. Primoff in Opp. to Mot. Pursuant to Fed. R. Civ. P. 60(b) ("Primoff Decl.") ¶ 3, May 14, 2012.) Raymond J. Heslin ("Mr. Heslin"), a partner at RubinBaum and a former partner at Gold, Farrell & Marks, was asked to supervise Plaintiffs' lawsuit. (Id.; Heslin Decl. ¶ 4.)

On August 1, 2001, members of the Gary Firm, a mid-sized firm based in Florida, filed a motion with the Court to appear pro hac vice, (ECF No. 262), to represent Plaintiffs as co-counsel with RubinBaum and share half of the contingency fee. (Heslin Decl. ¶ 5.) On June 1, 2002, RubinBaum merged with the firm of Sonnenschein Nath & Rosenthal ("SNR"). (ECF No. 354.) On March 28, 2003, SNR withdrew from the litigation and transferred all of its relevant papers to the Gary Firm, which took over sole representation of Plaintiffs. (Decl. of Martin R. Gold in Opposition to Motion Pursuant to FRCP 60(b) ("Gold Decl.") ¶ 12, May 10, 2012; Heslin Decl. ¶ 15.)

C.Magistrate Judge Francis' Discovery Order

Plaintiffs' First Request for Documents included "sweeping" discovery demands. Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 424 (S.D.N.Y. 2002). Some of Plaintiffs' demands were limited to the period from January 1, 1993 to the date the lawsuit was filed, while others contained no date restrictions whatsoever. (Decl. of Richard G. Primoff in Opp. to Defs.' Mots. for Protective Orders with Respect to E-mail Comm'cns ("Primoff E-mail Decl."), Ex. A, Oct. 26, 2001.) Indeed, among their thirty-five requests for documents, Plaintiffs sought production of "all documents concerning any communication between any defendants relating to the selection of concert promoters and bids to promote concerts" and "[a]ll documents concerning the selection of concert promoters, and the solicitation, and bidding processes relating to concert promotions." Rowe, 205 F.R.D. at 424 (emphasis added) (internal citation omitted). In response, the Booking Agency Defendants moved pursuant to Rules 26(b)(2)(iii) and 26(c) of the Federal Rules of Civil Procedure for a protective order to relieve them of their obligations to produce e-mails responsive to Plaintiffs' requests, arguing that "the burden and expense involved would far outweigh any possible benefit in terms of discovery of additional information." Id.

On January 16, 2002, Magistrate Judge James C. Francis IV issued a lengthy opinion denying the Booking Agency Defendants' motion for a protective order. Id. at 433. Instead, Magistrate Judge Francis outlined a detailed protocol for determining what e-mails were relevant to Defendants' selections of concert promoters and appropriate for production, ordered the Booking Agency Defendants to produce the computer hard drives containing those e-mails in accordance with that protocol. Id. Magistrate Judge Francis' protocol, which laid out a step-by-step procedure for the parties to follow, contained six key provisions:

1. First, Plaintiffs would designate the expert or experts who would be responsible for isolating, separating, and preparing e-mails for review. Defendants would have the opportunity to object to the selected expert(s).

2. Second, Defendants' technical personnel would help Plaintiffs' expert(s) obtain a mirror image of any hard drives containing e-mails as well as a copy of any back-up tapes. Plaintiffs could choose to review a sample of hard drives and tapes instead of all such devices.

3. Third, Plaintiffs' counsel would formulate a search procedure for identifying responsive e-mails and then notify Defendants of the procedure chosen, including any specific word searches Plaintiffs wished to conduct. Defendants could object to any search proposed by Plaintiffs.

4. Fourth, once the parties established an appropriate search method, it would be implemented by Plaintiffs' expert(s). Plaintiffs' counsel could then review the documents generated by the search on an attorneys' eyes only basis.

5. Fifth, once Plaintiffs' counsel identified those e-mails they considered material to this litigation, they would provide those documents to Defendants' counsel in hard copy form with Bates stamps.

6. Sixth, Defendants would then have the opportunity to review the documents produced in order to designate those that are confidential and to assert any privilege. Any purportedly confidential or privileged document would be retained on an attorneys' eyes only basis until any dispute about the designation could be resolved, and the fact that the document in question had been reviewed by counsel or by an expert would not constitute a waiver of a claim of privilege or confidentiality.

See id. (emphasis added).

D.The Parties' Application of Magistrate Judge Francis' Search Protocol

On August 14, 2002, pursuant to Magistrate Judge Francis' Order, Plaintiffs' counsel, Mr. Primoff, sent an e-mail to counsel for the Booking Agency Defendants in which he detailed Plaintiffs' intended methodology for searching the e-mail accounts of the relevant employees of the Booking Agency Defendants. The e-mail stated, in relevant part, that Plaintiffs intended to search the e-mails of six named employees of CAA and five named employees of WMA. (Frank Decl., Ex. C.)*fn8 Plaintiffs also explained how the e-mail search would be conducted:

With respect to the periods being examined, plaintiffs will restore and retrieve all email communications between and/or among these users. In addition, plaintiffs will apply a list of search terms against these accounts, to consist of the following: [long list of terms including "[List of racial slurs]"]. (Id.)

By letter dated September 4, 2002, counsel for Defendant WMA, Sandra McCallion ("Ms. McCallion"), notified Mr. Primoff that "[t]he tape sets you have requested have been collected in WMA's California office and have been sent to your expert's Seattle, Washington office this evening." (Id., Ex. F.) She confirmed with Mr. Primoff that the only e-mail accounts from WMA to be searched were those of the specific individuals previously named. (Id.) In accordance with the protocol ordered by Magistrate Judge Francis, Ms. McCallion emphasized that the WMA Defendants did not "consent . . . to the use by you or your experts of any additional search terms without [WMA's] prior knowledge and consent." (Id.) Ms. McCallion then explicitly described the next steps involved in the e-mail discovery protocol, stating that "[a]s you have agreed, the expert will turn over to us the documents yielded by the attached search terms so we can conduct a privilege/work produce [sic] review in advance of your review." (Id.)

Per Magistrate Judge Francis' protocol, Plaintiffs' experts, EED, then retrieved and restored e-mails from the computer accounts of the specific employees designated by the parties. (Id., Ex. I.) After reviewing the e-mails produced by EED, counsel for WMA, Helen Gavaris ("Ms. Gavaris"), provided Plaintiffs with hard copies of the e-mails that WMA regarded as "non-responsive" and designated as "attorneys-eyes [sic] only," as well as a privilege log indicating the e-mails WMA designated as privileged. (Id., Ex. J.) By letters dated December 4, 2002, and December 10, 2002, WMA instructed Plaintiffs' expert to release the compact discs ("CDs") containing the non-privileged and non-responsive e-mails to Plaintiffs' counsel. (Id., Ex. K.)

Defendant CAA reacted similarly. After reviewing EED's results, Ms. Andrea Berner ("Ms. Berner"), counsel for CAA, sent Plaintiffs two CDs containing e-mails that used the agreed upon search ...


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