Case 1:16-cv-04423-ALC-GWG Document 37 Filed 11/14/16 Page 1 of 3

Kent A. Yalowitz
+1 212.715.1113
+1 212.715.1399 Fax
399 Park Avenue
New York, NY 10022-4690

November 14, 2016
The Honorable Andrew L. Carter, Jr.
United States District Court
Southern District of New York
40 Foley Square, Room 435
New York, NY 10007

World of Boxing LLC et al. v. Wilder et al., No. 16-cv-04870 (ALC) (GWG)
Wilder et al. v. World of Boxing LLC et al., No. 16-cv-04423 (ALC) (GWG)

Dear Judge Carter:
This firm represents the World of Boxing (“WOB”) parties in the above-referenced
actions. We respectfully ask that the Court re-set the discovery cutoff to January 31, 2017, and
schedule trial at a time consistent with its calendar thereafter. This is the first such request.
Background.—The parties disagree over several material facts that will have to be
resolved at trial. First, the Wilder parties take the position that they can prove that Mr. Povetkin
took Meldonium between April 11 and April 27, 2016—after the drug was banned by the World
Anti-Doping Agency (“WADA”). Wilder Complaint ¶ 50; Wilder Answer ¶ 56.1 The key
disputed fact is not whether Mr. Povetkin ever took Meldonium, but whether he took it in April
2016. As Wilder’s counsel admitted, “I think this is kind of a battle of the experts to a large
degree.” Tr. 14.
Second, the Wilder parties take the position that their decision not to travel to Russia on
May 15, 2016 to participate in the bout as scheduled was a passive result of “the WBC [World
Boxing Council] cancelling the fight.” Wilder Answer ¶¶ 63-64 (emphasis added). The WOB
parties disagree, contending that the decision was a willful repudiation of the contract.
The Wilder Parties’ Discovery Delays.—The key time period from the WOB
perspective is the weekend of May 13-15, 2016. During this period, the Wilder parties decided

WADA banned Meldonium as of January 1, 2016. There is no dispute that Mr. Povetkin had
taken Meldonium in September 2015—before WADA announced the ban. Moreover, WADA
issued a report in April 2016 that Meldonium clears the body slowly and irregularly, so that a
level of 1.0 or below as of that time was not automatically disqualifying. To be 100% clear,
there is no dispute that Mr. Povetkin’s 0.07 level was well below the 1.0 WADA cutoff.

Case 1:16-cv-04423-ALC-GWG Document 37 Filed 11/14/16 Page 2 of 3

Hon. Andrew L. Carter, Jr.
November 14, 2016
Page 2
not to travel to Russia to participate in the bout and made a series of defamatory statements to the
press. Yet the Wilder parties’ document production on this key period is way behind schedule.
The parties agreed that document production would be substantially complete by November 7.
But rather than focus on the key weekend, the Wilder parties have dumped thousands of
irrelevant emails on the WOB parties and have simply failed to produce text messages and
instant messages from that weekend, despite repeated requests. Moreover, the WOB parties
noticed the two individual defendants—Wilder and DiBella—for deposition November 15 and
16, and the Wilder parties refused to make them available on those dates.
Now, the World of Boxing parties must await the production of text messages and instant
messages; attempt to schedule depositions including depositions of individuals who reside in
Russia; and produce expert reports and engage in expert discovery—all in the coming 30 days.
The Motion to Disqualify.— Rather than focus on producing their documents and
preparing their witnesses for deposition, the Wilder parties were preparing a motion to disqualify
the undersigned from serving as trial counsel, which they filed on November 7. On November
10, they purported to withdraw the motion, but took the position that the undersigned would be
violating professional responsibilities not to withdraw as trial counsel.
The Wirt Testimony.—The motion to disqualify was supported almost exclusively by a
Declaration of an individual named John Wirt. Mr. Wirt contends that he plans to testify that to
the substance of telephone conversations he had with trial counsel during the period when the
contract was being negotiated. The Wilder parties contend that these telephone conversations are
now the “heart” of their case.
According to the Wilder parties’ motion to disqualify, the mere fact that Mr. Povetkin
tested positive for Meldonium—even if the test was a false positive—was a breach of contract
for which World of Boxing is liable. This “false positive” theory comes from “Wirt’s and the
Wilder Parties’ understanding of the meaning of the provisions as drafted by the WBC, based
upon (a) contemporaneous communications with the WBC, as well as (b) the plain language of
the contract.” Memo in Supp. Of Mot. To Disqualify at 7. According to the motion to
disqualify, trial counsel’s testimony is background to the communications between Wirt and the
WBC, which drafted the Bout Agreement and imposed it on the parties.
The parties all agree that an early ruling on the admissibility of Wirt’s testimony is now
necessary. The Wilder parties’ filing of the motion to disqualify means that the parties and the
Court must now turn their attention to motion practice rather than discovery and trial preparation.
The Trial Schedule.—When counsel appeared before this Court on September 26, the
Wilder parties said nothing about such a motion. The Court explained: “The February 6 trial

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Hon. Andrew L. Carter, Jr.
November 14, 2016
Page 3
date was set based on what counsel were indicating in terms of their willingness to sort of forego
motion practice to tee this thing up.” Conference Tr. 28. The Court added:
If counsel are going to be making motions, and you’re free to do so
and you should make motions if you’re entitled to, I think we should
cancel the trial date we’ll let everyone make their motions and I'll
decide them and we’ll see where we are at that point. Id. at 29.
Counsel for Wilder, Judd Burstein, repeatedly asked the Court to fast-track the case in
lieu of motion practice: “First of all, when I was suggesting that we do this fast track, the idea is
we were getting rid of all these motions because I think, for example, the defamation motion is
subject to dismissal. What I was thinking is that my view was we were going to move towards
trial. We weren’t going to waste time with motions.” Tr. 27; Tr. 28 (Mr. Burstein: “the whole
concept of this was not to make motions.”); Tr. 31 (Mr. Burstein: “what I don't want to do is
waste time between now and December 15 responding to motions.”).
The Court was very clear in asking “what kind of motions you’re anticipating,” Tr. 22,
and Mr. Burstein never mentioned a motion to disqualify. Indeed, Mr. Burstein represented to
the Court that “my case . . . would consist basically of two experts.” Tr. 15.



The Court and the World of Boxing parties relied on Mr. Burstein’s representation that he
was not going to be making motions, and the Court set the ambitious discovery and trial
schedule. The World of Boxing parties also relied on Mr. Burstein’s promise that his clients
would meet their discovery obligations. The changed circumstances require a change in plan, so
that the World of Boxing parties have a fair chance to meet the threat to disqualify their chosen
trial counsel and to eliminate the irrelevant and unfairly prejudicial testimony of Mr. Wirt
without the burden of an expedited discovery schedule at the same time.
We stand ready to appear at the Court’s convenience to discuss this request.
Respectfully yours,


EFC Counsel