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CONFIDEN TIAL MA TERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND
EXCHANGE OF CONFIDENTIAL INFORMATION
KIRKLAND &. ELLIS LLP
AND AFFILIATED PARTNERSHI PS
333 South Hope Street
Los Angeles, California
90071
Robyn E. Bladow
To Call Writer Directly : (213) 680-8400 Facsimile:
(213) 680-8634 (213) 680-8500
robyn.bladow@kirkland.com www.kirkland.com
April 11, 2017
By Hand (Redacted Version via ECF)
The Honorable Jeffrey K. Oing
New York State Supreme Comi, New York County
Commercial Division, Part 48
60 Centre Sti·eet
New York, New York 10007
Re: SNIISI Networks L.L.C. v. DIRECTV, LLC, Index No. 652471/2014
Dear Justice Oing:
On behalf of defendant/counter-claimant DIRECTV , LLC ("DIRECTV"), this letter
requests that the Comi compel plaintiff SNI/SI Networks L.L.C. 's ("Smithsonian") to produce
two categories of documents that Smithsonian has continued to withhold. First, Smithsonian has
withheld documents based on its position regarding the statute of limitations applicable to
DIRECTV's counterclaim. But that statute of limitations issue continues to be the subject of a
dispute between the pa1iies, one which has not been properly raised with, much less mled on by,
th e Court at summaiy judgment or ti·ial. Smithsonian's decision to withhold documents based on
its unilateral view of this disputed statute of limitations issue is no more proper than if
Smithsonian had withheld all documents relevant to DIRECTV's counterclaim based on its
unilateral view of the merits of DIRECTV 's breach allegations. It is simply an improper basis
on which to withhold documents that ai·e material an d necessaiy Second, Smithsonian has also
decided-despite the Comi having allowed DIRECTV's counterclaim and des ite the Court's
clerk havin advised Smithsonian that documents related to
need to be prodli ced
i that
ii it ma
!redact entire emails, or
words or sentences therein, that reference or relate to on the basis that
Smithsonian views them as inelevant to the claims an e enses m t 1s case. And althou
respectfully requests that the Comi compel production of the documents and infon nation
Smithsonian is withholding.
Smithsonian 's Improper Discove1y Cut-Off Date: DIRECTV entered into its initial
contract with Smithsonian in • . That agreement, like the paiiies' . agreement, included
obli ations that Smithsonian has since breached. Smithsonian
Beijing Chicago Hong Kong Houston London Munich New Yori< Palo Alto San Francisco Shanghai Washington, D.C.
SNIISI Networks L.L. C. v. DIRECTV, LLC Page 2 of 4
fudex No. 652471/2014
April 11, 2017
7. DIRECTV has thus re uested that Smithsonian ·eements and financial documents
relating to . See Ex. 2.
Despite the fact that discovery to date has revealed that Smithsonian has been in breach
of its contrncts with DIRECTV since , Smithsonian now refuses to
produce documents from before . See Ex. 3 at 3. The stated basis for
Smithsonian's refusal to produce ocuments gomg back to when the paiiies first entered their
contract i n ., and during the time Smithsonian was admittedly in breach i n ., is
Smithsonian's unilateral view that the a licable statute of limitations would onl go back to
. Ex. 4 at 1.
DIRECTV disputes Smithsonian 's position on the statute of limitations for the reasons
briefly explained below. But more impo1iantly, Smithsonian's attempt to limit its discove1y
obligations based on its statute of limitations argument is improper under New York law. See
CPLR § 3101 ("There shall be full disclosure of all matter material and necessaiy in the
prosecution or defense of an action .... "). Discove1y disputes are not the proper vehicle for the
Comi to reach substantive issues like a statute of limitations defense. See Deutsche Bank Trust
Co. ofAmericas v. Tri-Links Inv. Trust, 837 N.Y.S. 2d 15, 22 (1st Dep 't 2007) (lower comi did
not have authority "to resolve a substantive issue, on the merits and as a matter of law, on
a discove1y motion"). The parties ' dispute regarding the statute of limitations may only be
decided after the paiiies have sought and received evidence on the issue and have fully presented
it to the Comi. See id.; see also Corning-Painted Post Area Sch. Dist. v. Vil!. ofPainted Post,
614 N .Y.S. 2d 950, 951 (4th Dep't 1994) ("[A]s the issue of the statute of limitations has not
been fully briefed, defendant ... will be allowed the opportunity to address this issue in a
sepai·ate motion.").
Reserving its right to fully brief the statute of limitations issue on the merits, DIRECTV
briefly summarizes its view on the issue. Under CPLR § 202 and California law, DIRECTV's
breach of contract counterclaim was timely filed. Under California's "discove1y rnle", the
statute of limitations "does not begin to nm until the plaintiff either (1) actually discovers the
injury and its cause or (2) could have discovered the injmy and its cause through the exercise of
reasonable diligence." Angeles Chem. Co. v. Spencer & Jones, 44 Cal. A . 4th 112, 120
~ e fact that Smithsonian's breach of its
- supports application of the discove1y
App. 3d 805, 831-832 (1983 . DIRECTV makes
discover rnle because the
Smithsonian not only , but it
also tried to affinnatively hide those by refusing to produce
discovery until after this Comi, and t e Appe ate D1v1s10n, compe ed that production. See Doc.
No. 34; Doc. No. 55. It was onl after Smithsonian roduced documents in late April 2016, and
, that DIRECTV learned about
Smithsonian's breaches dating back until at least . See Doc. No. 75 at Ex. 1 ,nr 28-30.
DIRECTV then timely filed its counterclaim in June 2016.
SNIISI Networks L.L. C. v. DIRECTV, LLC Page 3 of 4
fudex No. 652471/2014
April 11, 201 7
DIRECTV respectfully requests that the Court compel Smithsonian to produce
responsive documents for the three identified Other Distributors dating back to
Smithsonian 's Continued Effo1t to Hide fufo1mation About
ed to this Comt that
Smithsonian to produce doc
documents, that related to
agreed to unredact information relating o
documents, but refused to produce any
~ m the Comt compe mg pro
- · Doc. No. 99 at 1-2.
As the Comt may recall, it held off on deciding this issue until after it ·anted DIRECTV
leave to file its counterclaim in December 2016. See Doc. No. 111
Then, during a discove1y
con erence, t e Comt's c er as e t e pait1es to agree t at t e issue of whether -
- documents and infonnation needed to be produced was moot given that the discove1y
was now clearly relevant to DIRECTV's counterclaim. Smithsonian then stated, for the first
time, that it could not roduce documents because
Ex. 12 at 1 , DIRECTV w1 not
accept Smithsonian's baseless relevancy redactions or its mischai·acterization of this Comt's
proceedings, nor should this Comt . DIRECTV respectfully requests that the Court compel
Smithsonian to roduce all documents res onsive to RFP Nos. 7-9, 13-16, 19-22 includin
See Ex. 13 at 7-8
9); Ex. 14 at 5 (RFP Nos. 13-1 6); Ex. 2 at 6-7 (RFP Nos. 19-22).
We thank the Comt for its consideration of these issues.
SNI/SI Networks L.L.C. v. DIRECTV, LLC Page 4 of 4
Index No. 652471/2014
April 11, 2017
Respectfully submitted,
Robyn Bladow
cc: all counsel of record
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CONFIDEN TIAL MA TERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION KIRKLAND &. ELLIS LLP AND AFFILIATED PARTNERSHI PS 333 South Hope Street Los Angeles, California 90071 Robyn E. Bladow To Call Writer Directly : (213) 680-8400 Facsimile: (213) 680-8634 (213) 680-8500 robyn.bladow@kirkland.com www.kirkland.com April 11, 2017 By Hand (Redacted Version via ECF) The Honorable Jeffrey K. Oing New York State Supreme Comi, New York County Commercial Division, Part 48 60 Centre Sti·eet New York, New York 10007 Re: SNIISI Networks L.L.C. v. DIRECTV, LLC, Index No. 652471/2014 Dear Justice Oing: On behalf of defendant/counter-claimant DIRECTV , LLC ("DIRECTV"), this letter requests that the Comi compel plaintiff SNI/SI Networks L.L.C. 's ("Smithsonian") to produce two categories of documents that Smithsonian has continued to withhold. First, Smithsonian has withheld documents based on its position regarding the statute of limitations applicable to DIRECTV's counterclaim. But that statute of limitations issue continues to be the subject of a dispute between the pa1iies, one which has not been properly raised with, much less mled on by, th e Court at summaiy judgment or ti·ial. Smithsonian's decision to withhold documents based on its unilateral view of this disputed statute of limitations issue is no more proper than if Smithsonian had withheld all documents relevant to DIRECTV's counterclaim based on its unilateral view of the merits of DIRECTV 's breach allegations. It is simply an improper basis on which to withhold documents that ai·e material an d necessaiy Second, Smithsonian has also decided-despite the Comi having allowed DIRECTV's counterclaim and des ite the Court's clerk havin advised Smithsonian that documents related to need to be prodli ced i that ii it ma !redact entire emails, or words or sentences therein, that reference or relate to on the basis that Smithsonian views them as inelevant to the claims an e enses m t 1s case. And althou respectfully requests that the Comi compel production of the documents and infon nation Smithsonian is withholding. Smithsonian 's Improper Discove1y Cut-Off Date: DIRECTV entered into its initial contract with Smithsonian in • . That agreement, like the paiiies' . agreement, included obli ations that Smithsonian has since breached. Smithsonian Beijing Chicago Hong Kong Houston London Munich New Yori< Palo Alto San Francisco Shanghai Washington, D.C. SNIISI Networks L.L. C. v. DIRECTV, LLC Page 2 of 4 fudex No. 652471/2014 April 11, 2017 7. DIRECTV has thus re uested that Smithsonian ·eements and financial documents relating to . See Ex. 2. Despite the fact that discovery to date has revealed that Smithsonian has been in breach of its contrncts with DIRECTV since , Smithsonian now refuses to produce documents from before . See Ex. 3 at 3. The stated basis for Smithsonian's refusal to produce ocuments gomg back to when the paiiies first entered their contract i n ., and during the time Smithsonian was admittedly in breach i n ., is Smithsonian's unilateral view that the a licable statute of limitations would onl go back to . Ex. 4 at 1. DIRECTV disputes Smithsonian 's position on the statute of limitations for the reasons briefly explained below. But more impo1iantly, Smithsonian's attempt to limit its discove1y obligations based on its statute of limitations argument is improper under New York law. See CPLR § 3101 ("There shall be full disclosure of all matter material and necessaiy in the prosecution or defense of an action .... "). Discove1y disputes are not the proper vehicle for the Comi to reach substantive issues like a statute of limitations defense. See Deutsche Bank Trust Co. ofAmericas v. Tri-Links Inv. Trust, 837 N.Y.S. 2d 15, 22 (1st Dep 't 2007) (lower comi did not have authority "to resolve a substantive issue, on the merits and as a matter of law, on a discove1y motion"). The parties ' dispute regarding the statute of limitations may only be decided after the paiiies have sought and received evidence on the issue and have fully presented it to the Comi. See id.; see also Corning-Painted Post Area Sch. Dist. v. Vil!. ofPainted Post, 614 N .Y.S. 2d 950, 951 (4th Dep't 1994) ("[A]s the issue of the statute of limitations has not been fully briefed, defendant ... will be allowed the opportunity to address this issue in a sepai·ate motion."). Reserving its right to fully brief the statute of limitations issue on the merits, DIRECTV briefly summarizes its view on the issue. Under CPLR § 202 and California law, DIRECTV's breach of contract counterclaim was timely filed. Under California's "discove1y rnle", the statute of limitations "does not begin to nm until the plaintiff either (1) actually discovers the injury and its cause or (2) could have discovered the injmy and its cause through the exercise of reasonable diligence." Angeles Chem. Co. v. Spencer & Jones, 44 Cal. A . 4th 112, 120 ~ e fact that Smithsonian's breach of its - supports application of the discove1y App. 3d 805, 831-832 (1983 . DIRECTV makes discover rnle because the Smithsonian not only , but it also tried to affinnatively hide those by refusing to produce discovery until after this Comi, and t e Appe ate D1v1s10n, compe ed that production. See Doc. No. 34; Doc. No. 55. It was onl after Smithsonian roduced documents in late April 2016, and , that DIRECTV learned about Smithsonian's breaches dating back until at least . See Doc. No. 75 at Ex. 1 ,nr 28-30. DIRECTV then timely filed its counterclaim in June 2016. SNIISI Networks L.L. C. v. DIRECTV, LLC Page 3 of 4 fudex No. 652471/2014 April 11, 201 7 DIRECTV respectfully requests that the Court compel Smithsonian to produce responsive documents for the three identified Other Distributors dating back to Smithsonian 's Continued Effo1t to Hide fufo1mation About ed to this Comt that Smithsonian to produce doc documents, that related to agreed to unredact information relating o documents, but refused to produce any ~ m the Comt compe mg pro - · Doc. No. 99 at 1-2. As the Comt may recall, it held off on deciding this issue until after it ·anted DIRECTV leave to file its counterclaim in December 2016. See Doc. No. 111 Then, during a discove1y con erence, t e Comt's c er as e t e pait1es to agree t at t e issue of whether - - documents and infonnation needed to be produced was moot given that the discove1y was now clearly relevant to DIRECTV's counterclaim. Smithsonian then stated, for the first time, that it could not roduce documents because Ex. 12 at 1 , DIRECTV w1 not accept Smithsonian's baseless relevancy redactions or its mischai·acterization of this Comt's proceedings, nor should this Comt . DIRECTV respectfully requests that the Court compel Smithsonian to roduce all documents res onsive to RFP Nos. 7-9, 13-16, 19-22 includin See Ex. 13 at 7-8 9); Ex. 14 at 5 (RFP Nos. 13-1 6); Ex. 2 at 6-7 (RFP Nos. 19-22). We thank the Comt for its consideration of these issues. SNI/SI Networks L.L.C. v. DIRECTV, LLC Page 4 of 4 Index No. 652471/2014 April 11, 2017 Respectfully submitted, Robyn Bladow cc: all counsel of record CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 1 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 2 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 3 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 4 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 5 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 6 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 7 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 8 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 9 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 10 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 11 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 12 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 13 EXHIBIT WITHHELD CONFIDENTIAL MATERIAL SUBJECT TO ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION EXHIBIT 14 EXHIBIT WITHHELD