Judge Orders Emelianenko, M-1 Global, Affliction to Resolve Disputes

Amid a recent flurry of discovery disputes between courtroom adversaries Fedor Emelianenko/M-1 Global (plaintiffs) and Affliction Entertainment (defendant), a federal magistrate judge on Monday issued an order staying discovery between the parties, ordering them to meet and confer “day to day until done” to resolve their disputes.

The litigation commenced back in October 2009, when Emelianenko and M-1 Global, a promotional/management group with which the fighter is closely aligned, filed suit to recover damages they allegedly suffered after Affliction cancelled the co-promoted “Trilogy” event, scheduled to take place on Aug. 1, 2009. “The Last Emperor” and M-1 claim that Affliction Entertainment breached the “Fight Agreement” when it refused to stage and promote a third bout for Emelianenko after his advertised opponent, Josh Barnett, was refused a license in California. Two weeks before the Affliction event, the California State Athletic Commission denied Barnett’s license application, reporting the fighter tested positive for steroids. According to M-1 and Emelianenko, Affliction did not undertake “all reasonable efforts” to find a fighter to replace Barnett. They contend that Affliction lost interest in promoting this third bout partly because it was trying to repair its soured relationship with the UFC.

On May 26, 2010, Affliction filed a countersuit against M-1, claiming one of the documents governing their relationship, a “Consulting Agreement,” was a “sham contract designed to avoid tax obligations.” Affliction asked the court to declare the Consulting Agreement unlawful and require M-1 to refund the $2.4 million it initially collected for the two events. Earlier this year, M-1 Global’s attorney, Marc S. Hines, told Sherdog.com, “We deny the allegations in the cross-claim.” Shortly after Sherdog.com first reported the news, Affliction voluntarily dismissed its counterclaim, without prejudice to re-file its claim at some later date. The court’s docket reflects that Affliction has never re-filed its counterclaim. At this stage of the proceedings, it is highly unlikely Affliction could or would do so.

Until now, the parties were moving forward toward completing discovery (e.g., written interrogatories, requests for production of documents and depositions of potential trial witnesses) before the court-imposed deadline of January 28, 2011. Several key depositions have been taken by the parties. According to M-1, among the depositions it has taken to date are Zuffa (through its President Dana White and General Counsel Lawrence Epstein), Affliction (through co-founder Todd Beard, Vice President Tom Atencio and attorney Michael Bassiri) and Strikeforce CEO Scott Coker. However, with the discovery cutoff looming, the parties have become embroiled in several discovery disputes in recent weeks, bringing issues to the court for resolution through ex parte applications -- a special type of “emergency” motion usually reserved for matters needing urgent resolution.

The first dispute concerns the number of additional depositions M-1 is allowed to take. Relying on a previous decision by the court, Emelianenko and M-1 argue that each side can take 15 depositions, in addition to expert witness depositions. Affliction disagrees, interpreting the court’s order as permitting only 15 depositions total. The parties also disagree on the number of depositions that have already been taken. In civil litigation, where a corporate deposition is taken, the company is responsible for producing one or more corporate representatives that are qualified to testify regarding all of the subjects listed in the deposition notice. The dispute here is focused on whether certain individuals were deposed in their personal capacity or whether they were deposed as corporate representatives. The answer to that disputed question will affect the tally of how many depositions M-1 has taken and how many more it can take.

By M-1’s count, it has taken just eight depositions to date. However, under Affliction’s reasoning, some of the witnesses were deposed in their personal capacity, so it argues M-1 has taken 11 and is closer to exhausting its allotted 15 depositions. M-1 seeks urgent court intervention to resolve the dispute and force the depositions of several other third party witnesses, including Brett Rogers, an alleged potential replacement for Barnett. “The deposition is necessary to establish whether Mr. Rogers was read[y], willing and able to fight Plaintiff Fedor Emelianenko on August 1, 2009,” according to M-1.

Through a second ex parte application, M-1 seeks an order requiring Affliction to answer its written discovery questions (interrogatories) and produce a slew of documents M-1 believes it is entitled to see, including agreements and communications related to HDNet and DirecTV. It also seeks a related order forcing Affliction to submit to another deposition. According to M-1, Affliction failed to hand over documents in advance of Affliction’s corporate deposition and did not come prepared to answer questions on the topics included in the deposition notice. Affliction vehemently disagrees, arguing that it produced qualified witnesses at the deposition and produced all the requested documents in its possession.

The third discovery dispute concerns M-1’s scheduled depositions of an Australian pay-per-view broadcaster and Rogers. M-1 wants these depositions to prove damages and Rogers’ availability to fight Emelianenko at Affliction “Trilogy.” Affliction filed its own ex parte application to stop these depositions from going forward, arguing that the deposition notices were void based on procedural technicalities.

With all this back and forth over ordinarily routine discovery procedures, the judge appeared frustrated by the parties’ inability to work through at least some of their disagreements. On Monday, the judge issued an order denying all three ex parte applications and scolding the parties: “The filing of discovery requests and ex parte applications in the days before the discovery cutoff is an abuse of the judicial process.” The judge ordered a halt to everything, until the parties sit down and hash out their problems, starting on Thursday, and threatened to impose sanctions on any party or attorney that fails to engage in a good faith effort to resolve the disputes.

M-1’s counsel, Hines, told Sherdog.com, “Once we’re past these procedural discovery issues, we’re preparing to go to trial.”

Affliction’s counsel was contacted but declined to comment on the matter. Even though discovery has temporarily been put on hold, the June 7 trial date remains on the calendar, at least for the time being.

“J.R.” Riddell, an attorney at the global law firm Orrick, Herrington & Sutcliffe, is experienced in various matters related to the business of MMA. A more detailed background regarding his experience is available through his lawyer profile at www.orrick.com. This article does not provide legal advice, and any opinions expressed in this article are solely those of the author and do not reflect the views of his law firm. Riddell can be reached at [email protected]. Tracey Lesetar ([email protected]) contributed to this article.