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John Wiley & Sons, Inc. v. Book Dog Books, LLC

United States District Court, S.D. New York

May 7, 2014

JOHN WILEY & SONS, INC. et al., Plaintiffs,
v.
BOOK DOG BOOKS, LLC et al., Defendants

For John Wiley & Sons, Inc., Cengage Learning, Inc., Pearson Education, Inc., Plaintiffs: Julie Clocker Chen, Matthew Jan Oppenheim, Oppenheim Zebrak, LLP, Washington, DC.

For Book Dog Books, Llc, Philip Smyres, Defendants: Janice Berkowitz, LEAD ATTORNEY, Ahmuty, Demers & McManus, Albertson, NY; Tiffany C Miller, LEAD ATTORNEY, Bailey Cavalieri LLC, Columbus, OH; Neil B. Mooney, PRO HAC VICE, The Mooney Law Firm, LLC, Tallahassee, FL.

For Thomas Cahill, Adr Provider: Tiffany C Miller, LEAD ATTORNEY, Bailey Cavalieri LLC, Columbus, OH.

OPINION

Page 401

OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiffs John Wiley & Sons, Inc. (" John Wiley" ), Cengage Learning, Inc., and Pearson Education, Inc. seek an order compelling defendants Book Dog Books, LLC (" BDB" ) and Philip Smyres to produce documents concerning certain communications that took place between Smyres and his attorney Neil Mooney. Plaintiffs also request that they be allowed to take a limited deposition of Mooney regarding these communications. For the reasons stated below, plaintiffs' motion is granted.

Page 402

I. BACKGROUND

A. Plaintiffs' 2007 Suit Against Smyres

Plaintiffs are publishing companies that provide a wide range of educational products for students and professionals. See First Amended Complaint, filed Apr. 24, 2013 (Docket # 16) (" Am. Compl." ), ¶ 1. Defendant BDB is a company that buys and sells textbooks, including some textbooks published by plaintiffs. Id. ¶ 2. Defendant Philip Smyres is the owner of BDB. Id. ¶ ¶ 14, 26; Answer to Amended Complaint, filed July 1, 2013 (Docket # 25), ¶ 14. Plaintiffs allege that in 2006 and 2007, they purchased copies of their textbooks from Smyres's companies and determined these copies to be counterfeits. See Am. Compl. ¶ 30. In October 2007, plaintiffs filed a lawsuit against Smyres, alleging that he had imported and distributed counterfeit copies of plaintiffs' copyrighted textbooks. Id. ¶ ¶ 3, 30; see also Complaint, filed Oct. 2, 2007 (Docket # 1 in 07 Civ. 8540).

In 2008, plaintiffs settled the 2007 lawsuit with a written settlement agreement that was signed by Smyres on behalf of himself and his companies. See Settlement Agreement and Mutual Releases, dated July 11, 2008 (annexed as Ex. 1 to Plaintiffs' Memorandum in Support of Their Motion to Compel Production of Documents and Testimony, filed Mar. 26, 2014 (Docket # 109) (" Pl. Mem." )). The agreement contained an injunctive provision prohibiting Smyres, as well as any entity owned or controlled by Smyres, from importing or selling pirated copies of plaintiffs' textbooks. Id. § 5. It also required Smyres to disclose to plaintiffs the foreign and domestic sources of any pirated copies of plaintiffs' textbooks, including " the name and location of the entity from whom such books were purchased, the types of books purchased, and the year(s) that Smyres Parties purchased such books." Id. § 10; Am. Compl. ¶ 33.

Pursuant to this requirement, defendants informed plaintiffs that they had purchased " most if not all" of the counterfeit textbooks from a company in Thailand named Best Books World (" Best Books" ). See Email, dated Sept. 10, 2008 (annexed as Ex. 2 to Pl. Mem.) (" Disclosure" ), at 2. The Disclosure consisted of an unsigned document attached to an email from defendants' attorney. The document was written in the first person, which presumably refers to Smyres himself. Id. The Disclosure stated in relevant part:

My research last November into this matter indicated that BestBooksWorld was not sending in any counterfeit books, but upon more careful review of the books we have received from them, it appears they may be the source of most if not all the pirated books . . . . We ...

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