United States District Court, E.D. New York
MEMORANDUM AND ORDER
I. LOCKE United States Magistrate Judge
before the Court is Plaintiff Tianbo Huang's
(“Huang” or “Plaintiff”) Motion to
Compel Defendants iTV Media Inc. (“iTV Media”),
iTV Media (Hong Kong), Ltd. (“iTV HK”), iTV.CN,
Inc. (“iTV.CN”), and Song Lin (“Lin”
and collectively, “Defendants”) to produce
documents responsive to Plaintiff's Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 34(a) requests.
See Notice of Motion (“Notice of
Motion”), Docket Entry (“DE”) .
Specifically, Plaintiff seeks to compel Defendants to produce
documents held by non-party iTV Media Technology (Beijing)
Ltd. (“iTV Beijing” or the
“Non-Party”), a wholly owned subsidiary of iTV HK
(which is wholly owned by iTV Media) and a sister corporation
of iTV.CN. See Memorandum of Law in Support of
Defendants' Motion to Compel Pursuant to Fed.R.Civ.P. 37
(“Pl.'s Mem. Law”), DE [74-1], at 14. Huang
also seeks sanctions pursuant to Fed.R.Civ.P. 37 in
connection with his motion. See Notice of Motion.
Defendants oppose Plaintiff's motion in its entirety.
See Memorandum of Law in Opposition to
Plaintiff's Motion to Compel Pursuant to Fed.R.Civ.P. 37
(“Def.'s Mem. Law”), DE .
reasons set forth herein, the portion of the motion seeking
to compel production of documents held by non-party iTV
Beijing is GRANTED as to all Defendants, but Plaintiff's
request for sanctions pursuant to Fed.R.Civ.P. 37 is DENIED.
On or before March 17, 2017, Defendants shall produce the
relevant documents in the possession of iTV Beijing. A status
conference is set for April 4, 2017 at 10:00 a.m. in
Courtroom 820 of the Central Islip courthouse.
factual and procedural background of this action is discussed
in an April 8, 2014 Memorandum and Order in which the
Honorable Joseph F. Bianco granted former Defendant
UTStarcom, Inc.'s Motion to Dismiss and granted in part
and denied in part Defendants' Motion to Dismiss, and is
incorporated herein by reference. See April 8, 2014
Memorandum and Order, DE . Nevertheless, the following
facts provide relevant context for the instant motion.
Huang is a New York resident who has worked in the internet
television industry for over ten years. See Second
Amended Complaint (“SAC”), DE , ¶ 9.
Defendant iTV Media, incorporated under the laws of the
British Virgin Islands with an office in California, is in
the media business and operates as a holding company, wholly
owning Defendant iTV HK, a company based in and organized
under the laws of Hong Kong. Id. at ¶¶ 1,
3; see Def.'s Mem. Law at 3. iTV HK, also a
holding company, wholly owns Defendant iTV.CN, a Delaware
corporation with a principal place of business in California,
and iTV Beijing, the Non-Party that is the subject of the
current dispute. See Def.'s Mem. Law at 3; SAC
¶ 2. Individual Defendant Lin is the Chief Executive
Officer and a member of the Board of Directors of all the iTV
entities, including iTV Beijing. Def.'s Mem. Law at 3;
SAC ¶ 4. Lin is a citizen of China, but maintains a
residence in California. SAC ¶ 4.
December 8, 2010, Huang met with Lin and Jingchun
“Jason” Sun (“Sun”), Chairman of the
Board of iTV Media, in Plainview, New York. Id. at
¶¶ 16, 22. The purpose of the meeting was to
discuss Huang possibly managing iTV.CN, which at the time was
a newly established entity. Id. at ¶¶
22-23. iTV Media sought to launch an internet based
television service platform in the United States under
iTV.CN. Id. According to Plaintiff, he was sought
after because iTV.CN “critically needed [his]
experience, contacts within the industry, and expertise,
” and he was promised “a stable and promising
career.” Id. at ¶¶ 23, 24.
the initial meeting, he met with iTV executives in Beijing,
China. Id. at ¶ 26. During the trip, Huang was
offered the position of directing “the global
operations of iTV Group, with the exception of China,
including directing responsibility for all of the North
American operations through a newly-formed U.S. entity,
Defendant iTV.CN.” Id. at ¶ 27. He also
was offered an annual salary of $300, 000, annual performance
bonuses, and stock interests in iTV Media equal to 1% of the
company. Id. at ¶¶ 27-28. He further was
told that an initial public offering of iTV Media was
forthcoming within the year, and that he would be provided
“invested stock rights” in that company.
Id. at ¶ 26. Persuaded, he accepted the offer
in April 2011, terminating his then-current employment.
Id. at ¶ 33. Although working to launch iTV.CN,
his position was “Vice President of iTV Media Inc.
& President of iTV Media International, ” and the
terms of his employment were memorialized in a written Offer
Letter, signed by Lin. Id. at Ex. A (“Offer
Letter”), DE [36-1], at 1. Huang reported directly to
Lin and was based in Melville, New York. See Offer
Letter; SAC ¶ 37.
employment with Defendants was not as he had imagined.
Despite the Offer Letter describing his duties as leading
operations of international businesses outside of China,
Huang claims that he was “prevented from doing so by
L[in], his direct supervisor, who continued to personally
manage international operations, most notably those in Spain
and Thailand.” Id. at ¶ 39. Lin also
instructed Plaintiff to ignore copyright restrictions and to
not enter into licensing agreements with content copyright
owners. Id. at ¶ 49. Moreover, according to
Huang, he was not timely paid his salary, worked 20-30 hours
in excess of his weekly schedule without compensation, and
was not awarded any stock interest. Id. at
¶¶ 40-41, 43. When he complained to Lin, including
that Defendants' conduct violated the New York Labor Law,
Lin responded with insulting remarks and threatened
termination. Id. at ¶¶ 40, 44, 47. In
general, Huang describes the environment as a “hostile
and intimidating work atmosphere.” Id. at
these work conditions, however, Plaintiff worked
“diligently” and “iTV Group's business
objectives had been significantly advanced by the latter part
of 2012.” Id. at ¶ 52. Nevertheless,
on November 2, 2012, Huang was terminated. Id. at
¶ 53. He believes that this was a “result of his
continued attempt to secure the benefits promised to him in
his [Offer Letter] and his insistence on obtaining legal,
albeit more expensive, content for the iTV Group
platforms.” Id. at ¶ 54. Although his
stock interests vested fully upon termination, he did not,
within 30 days of termination, receive any acknowledgement
that they vested, nor did he receive overtime pay or his full
benefits pursuant to his agreed upon severance package.
Id. at ¶¶ 55, 63-64. Further, even though
he was not paid his salary, he was sent an IRS Form W-2
stating that he was paid $342, 779.08 in 2012. Id.
at ¶ 56. Plaintiff claims this document was knowingly
false and misleading, particularly to “mask and to
conceal the iTV Group and L[in]'s fraud and to
intentionally inflict upon Plaintiff harm through the
creation of a large financial tax burden.” Id.
at ¶¶ 57, 60.
this alleged harm, Huang commenced this action on June 14,
2013 against Defendants,  subsequently amending the Complaint
twice. See Complaint (“Compl.”), DE ;
Amended Complaint (“Am. Compl.”), DE ; SAC.
He alleges causes of action for breach of contract, unjust
enrichment, fraud and deceit, breach of duty of good faith
and fair dealing, and failure to maintain records and illegal
deductions in violation of the New York Labor Law. See
generally SAC. Defendants answered the SAC on February
13, 2015. See DE .
The Current Dispute
served discovery requests on each Defendant in early
2015. See Pl.'s Mem. Law at 6.
Defendants generally objected, in part, that the documents
were not in their “possession, custody or
control.” See Letter Motion to Compel
(“Letter Motion to Compel”), DE , at Ex. A
(“Defendants' Objections”), DE [61-1], at pp.
3, 13, 21, 32. Although Defendants produced some documents,
Huang claims that “the vast majority of the documents
bore little relation to the discovery requests” as
“no internal correspondence was produced from any of
the support staff based in China . . . .” Pl.'s
Mem. Law at 6.
result, Plaintiff proposed a list of custodians that were
likely to possess responsive information, including five
based in the United States and five in the iTV Beijing
office. See id.; Meyers Decl., at Ex. 12 (“ESI
Request”), DE [74-14]. According to Huang, the
employees of the iTV Beijing office “were responsible
for the accounting of the iTV Group operations, the
management of the human resources of the iTV Group, the
funding and capitalization of the iTV Group and the
development and management of iTV Media's stock options
offering.” Pl.'s Mem. Law at 6. Defendants,
however, refused to produce documents of these custodians
with the exception of Lin, explaining that “we stand by
our objection to any and all discovery requests for materials
maintained by companies or employees of companies not named
as defendants in this matter.” See Meyers
Decl. at Ex. 16 (“May 14, 2015 Letter”), DE
[74-18]. Moreover, Defendants explained that computers kept
at iTV.CN offices in New York were “scrubbed”
before they were returned to the company, suggesting that
documents held by the United States custodians are out of
Defendants' possession. Id.
4, 2015 Plaintiff filed a letter motion to compel, citing
issues with Defendants': (1) relevancy objections to
Huang's discovery requests; (2) objection that they do
not have “possession, custody or control over iTV Media
subsidiaries;” and (3) refusal to produce documents in
response to Plaintiff's ESI request with the exception of
documents by Lin, including documents held by iTV Beijing
employees. See Letter Motion to Compel at 2-3. A
hearing was held on this letter motion on July 21, 2015, at
which time the Court ruled on Defendants' relevancy
objections. See July 21, 2015 Minute Order
(“July 21, 2015 Minute Order”), DE .
Concerning Defendant's refusal to produce documents in
control of its subsidiaries and those related to the ESI
Request, the Court denied the motion with leave to renew as a
motion on notice and after a Fed.R.Civ.P. 30(b)(6)
thereafter took the deposition of Lin as a 30(b)(6) witness,
and this motion followed. See Meyers Decl. at Ex. 3
(“Lin Dep.”). He now seeks an order compelling
Defendants to produce all documents responsive to his
Fed.R.Civ.P. 34(a) requests, particularly focusing on those
documents held by iTV Beijing, and related sanctions.
See Notice of Motion.