Case 1:16-cv-04870-ALC-GWG Document 90 Filed 01/25/17 Page 1 of 3

Kent A. Yalowitz
+1 212.836.8344 Direct
Kent.Yalowitz@apks.com

January 25, 2017

VIA ECF & HAND DELIVERY

The Honorable Gabriel W. Gorenstein

United States Magistrate Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: 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 Gorenstein:

This firm represents the World of Boxing parties1 in the above-referenced actions. I
write pursuant to Rule 2.A of Your Honors Individual Practices to request leave to serve a
rebuttal expert report of Dr. Dower De Boer.

The rebuttal report is a necessary response to two developments that occurred on

Monday, January 23: First, the Wilder parties produced additional biological data from the
UCLA Olympic Analytical Laboratory concerning Mr. Povetkin (as described in my letter
yesterday, DE 142). Second the Wilder parties provided an unauthorized supplemental expert
report from Dr. Eichner taking into account some of the data produced by the UCLA Olympic
Analytical Laboratorythough, remarkably, this supplemental report actually ignores the raw
data produced by the Wilder parties. Ex. A hereto. I consulted in person and by telephone with
Peter Schalk, counsel for the Wilder parties, and he agreed that we are at impasse.

As noted in my letter of January 24, the new raw data is extremely important. The case
turns in large part on three allegedly negative tests for Meldonium at the beginning of April
2016, followed by the April 27 test which had an estimated concentration of approximately 70
nanograms/ml of Meldonium. The World Anti-Doping Agency has ruled that concentrations
below 1,000 nanograms/ml are not disqualifying because Meldonium remains in the human body
for many months after ingestion, and there is no dispute that Mr. Povetkin took a two-week
course of Meldonium in August and September 2015. According to WADA, for athletes tested

1
All defendants in No. 16 Civ. 4423 and all plaintiffs in No. 16 Civ. 4870.

Arnold & Porter Kaye Scholer LLP

250 W 55th Street | New York, NY 10019-9710 | www.apks.com

 Case 1:16-cv-04870-ALC-GWG Document 90 Filed 01/25/17 Page 2 of 3

Hon. Gabriel W. Gorenstein

January 25, 2017
Page 2

before September 2016the period that Mr. Povetkins tests occurred, a test result of 1,000
nanograms/ml or less:

In the absence of other evidence of use on or after 1

January 2016, a finding of no fault may be made.

In the absence of other evidence of intake after 29

September 2015, no disqualification of results.

WADA, NoticeMeldonium (June 30, 2016) (Ex. B hereto).

The Wilder parties plan to present testimony from their experts offering the opinion that
Mr. Povetkin took Meldonium after the April 11 urine collection but before the April 27 urine
collection. These experts rely on the negative tests from April 7, 8, and 11 as their sole
evidence of use after January 1. Their reasoning is that the Meldonium that Mr. Povetkin took
on his physicians recommendation in August and September 2015 must have washed out of his
system completely by April 7, so that the only reasonable explanation of the positive test result
on April 27 was that Mr. Povetkin surreptitiously took a micro-dose after April 11.

But the raw dataproduced for the first time on Mondaycall into serious doubt the
assumption that Meldonium had washed out by April 11. They clearly show a spike of in the
mass spectrometry results at the exact retention time and the exact wavelength expected for the
Meldonium molecule.

We have retained Dr. De Boer as an expert in the interpretation of such data, and he is
diligently working on a report that will address this data.

Permitting a rebuttal expert report by Dr. De Boer would be the only reasonable cure for
the prejudice caused to the World of Boxing parties by the Wilder parties late disclosure of
highly relevant raw data and their untimely service of a supplemental expert report. See, e.g.,
Capitol Records, LLC v. Escape Media Group, Inc., No. 12-civ-6646, 2015 WL 1402049, at *25
(S.D.N.Y. Mar. 25, 2015) (adopting Magistrate Judge decision permitting untimely expert
submission containing statistical analyses based on data produced by the opposing party after the
experts initial report was due); Mahoney v. Keyspan Corp., No. 2004-civ-0554, 2007 WL
1651853, at *2 (E.D.N.Y. Jun. 6, 2007) (prejudicial effect of untimely expert report could be
cured by permitting opposing party to depose the expert and submit a rebuttal report); accord
Cartier, Inc. v. Four Star Jewelry Creations, Inc., No. 01-civ-11295, 2003 WL 22471909, at *2
(S.D.N.Y. Oct. 31, 2003) (prejudicial effect of untimely expert report could be cured by allowing
the opposing party to depose the expert before trial).
 Case 1:16-cv-04870-ALC-GWG Document 90 Filed 01/25/17 Page 3 of 3

Hon. Gabriel W. Gorenstein

January 25, 2017
Page 3

As described in my letter of January 24, 2017, Dr. Butch and the Wilder parties had
affirmative duties to produce these data long ago. We respectfully request the opportunity to
address it and to respond to the late-served supplemental expert report.

Respectfully yours,

cc: ECF Counsel