Joint Stock Company "Channel One Russia Worldwide" v. Russian TV Company Inc.

Background

Channel One, described as a Moscow-based television broadcaster, alleged that Russian TV Company, Inc. sold its programming in the United States through internet-based television service without authorization or license fees. Discovery was nearly complete, but the parties still disputed whether certain documents involving Olga Panfilova, Kartina Digital GmbH, and the law firm Dunnington Bartholow & Miller LLP were protected from disclosure.

Kartina had retained Dunnington to investigate alleged piracy and represent Channel One and other broadcasters in related actions. The court had previously found that Kartina effectively controlled and directed this litigation and had ordered production of certain Kartina documents. The remaining disputes involved two groups of emails: emails transmitting a password that Dunnington investigator Akbar Khan used to access an application marketed by Russian TV Company, and emails transmitting information or documents that Panfilova later discussed in her declaration.

Rulings on the Two Document Categories

For the password emails, the court ruled that the documents were not protected by attorney-client privilege or the work-product doctrine. The court explained that Channel One had used its lawyers to conduct a factual investigation and had submitted Khan’s sworn account of that investigation as evidence. In the court’s view, that use waived protection for documents underlying the disclosed investigation. The court also noted that defendants’ need to receive the emails was not relevant once the documents were found unprotected.

For the second category, the court held that the emails themselves were confidential communications between Kartina and its lawyers and remained protected by attorney-client privilege. The fact that Panfilova later discussed some of the same facts in a declaration did not waive protection for the communications themselves. The underlying facts and attachments were not privileged, however. The court stated that any attachments to the category 2 emails that had not already been produced had to be provided.

Disposition

The court ordered the category 1 emails to be promptly produced. Defendants were prohibited from using the information in those emails to shut down or disable Khan’s account. The category 2 emails themselves did not have to be produced, but any unproduced attachments had to be promptly provided. The parties were ordered to cooperate in good faith to complete Panfilova’s deposition by June 1, 2020. Because of the COVID-19 pandemic, the deposition could occur by telephone, videoconference, or another reliable remote method, subject to the stated requirements for placing the witness under oath before an authorized officer. Judge Barbara Moses issued the order as a United States Magistrate Judge.