Judge Moses (NYLJ/Rick Kopstein)
A Manhattan lawyer may face sanctions for failing to produce documents related to the whereabouts of his corporate client after nearly a year of “remarkably uninformative” and “implausible” discovery responses, a magistrate judge has ruled.
Meanwhile, the lawyer, Mintz & Fraade partner Alan Fraade, was allowed to withdraw as counsel to Panorama TV after claiming the company had suddenly become “unresponsive” and stopped cooperating, thereby placing him in “an untenable position.”
But a mystery in the litigation remains: Does the company, which Fraade says is based in Scotland, have a U.S. presence or not?
The suit, filed by a group of Russian broadcast companies in February 2016, accuses Panorama and several other internet protocol television services of “pirating” and reselling their programming online to U.S. customers without authorization or paying licensing fees.
According to Raymond Dowd, a partner at Dunnington Bartholow & Miller representing the plaintiffs, between 1,000 and 10,000 customers have been served by the illegal “pirating” services, causing his clients, including joint stock company Channel One Russia Worldwide, to lose up to $5,000 per customer.
The case, pending before Southern District Judge George Daniels, brings 10 causes of action, including unauthorized publication or communication under the Communications Act; circumvention in violation of the Digital Millennium Copyright Act; copyright infringement; trademark infringement; and unfair competition.
Dowd noted that many of the customers receiving the illegal broadcasts are Russian-speaking residents of Brighton Beach in Brooklyn.
But it is the actions of Fraade, the lawyer for one of three remaining defendants in the suit, that engendered a lengthy May 9 opinion from Southern District Magistrate Judge Barbara Moses.
She detailed Fraade’s actions over a year’s time, chastised him, and left open the possibility that he will be sanctioned even as she granted his motion to withdraw.
“Panorama’s responses to plaintiff’s discovery requests, signed by attorney Fraade, were remarkably uninformative and, in a number of respects, implausible,” Moses wrote.
She added, “It claimed not to possess a single responsive document—beyond the one-page certificate it previously submitted—concerning its partners; its corporate and management structure; its registration, ownership, and management of the website; its payments to domains by proxy or other website hosting companies; its registration of the 1-800 telephone number displayed on the website; its relationship with the Avenue Z [Brooklyn] address; or its agreements or contracts with New York residents.”
In granting Fraade’s withdraw motion, Moses took the unusual step of retaining jurisdiction “in connection with plaintiffs’ pending sanctions motions.” She ordered Fraade to produce all emails between his firm and Panorama relating to their retainer agreement and ordered him to produce manually signed declarations from his client’s agent, after Fraade had previously used unsigned declarations bearing a typewritten name only.
Fraade, responding to a request for comment, said in a voicemail, “We do not generally comment on ongoing matters, especially in matters such as this, which is presently before a federal magistrate, so no comment at this time.”
The battle over discovery from Panorama began after Fraade filed a motion to dismiss based on lack of jurisdiction. He claimed that the company only had a presence in the United Kingdom. Lawyers at Dowd’s firm had attempted to serve Panorama at an address in Brooklyn on Avenue Z, where a banner was hung with Panorama’s name on it.
They sought discovery while battling the lack of jurisdiction argument, and pointed out to the court, among other things, that the retainer agreement between Fraade and his client said Panorama had its office in New York; and that Fraade had spelled the name of a managing agent for his client different ways and produced a document for his client that had an illegible signature.
In addition, they questioned the veracity of a witness Fraade produced for deposition, who works out of the Avenue Z building, who has disclaimed any direct relationship to Panorama despite having both sold its products and bought and transferred its internet domain name.
In her opinion, Moses repeatedly questioned the evasiveness of Fraade. “Perhaps attorney Fraade was not aware, when he signed Panorama’s interrogatory answers, that according to its Form LP-5, on file with the United Kingdom government, Zeltser [who Fraade named at the bottom of the answers] was not a partner at all,” Moses wrote in one footnote.
In another footnote, she wrote, “Perhaps attorney Fraade did not notice, when he signed Panorama’s interrogatory answers, that his client’s website displayed the Avenue Z Address, along with a Brooklyn telephone number, under the headline ‘Panorama TV Authorized Dealer.’”
She also pointed out that Fraade had submitted interrogatory answers that violated the Federal Rules of Civil Procedure because they were unsigned by his client. In addition, she noted Fraade’s response to the retainer agreement’s statement that Panorama had a New York office. Fraade had called it an “unfortunate drafting mistake” made by an associate who included “erroneous” “boilerplate” language in the agreement, according to Moses.
Dowd on Monday said of the lawsuit and its protracted fight over Panorama, “We hope to uncover the truth. It’s very unusual to have an attorney’s client remain a mystery so late into the game.”