IP - Discovery of attorney-client communications

 We agree with plaintiffs' contention that the subject of the privileged communications—what Smyres communicated to his attorney regarding the representations that were to be made in the Disclosure, including whether Best Books or Wirat was the source of the counterfeit books—is critically relevant to the case. This is because Smyres's intent when he allegedly infringed plaintiffs' copyrights is “the determining factor for assessing willfulness.” Id. at 8; see 17 U.S.C. § 504(c)(2) (amount of recovery in copyright infringement action affected by whether or not defendant acted willfully). Smyres acted willfully if he “either had actual knowledge that [he] was infringing the Plaintiffs' copyrights or else acted in reckless disregard of the high probability that [he] was infringing Plaintiffs' copyrights.” See Yurman Studio, Inc. v. Castaneda, 591 F.Supp.2d 471, 486 (S.D.N.Y.2008) (quotation marks and citations removed). The testimony sought by plaintiffs relates directly to this issue. Fairness requires that plaintiffs be given the opportunity to obtain the recollection of Smyres's attorney as to his conversations with Smyres regarding the Disclosure.

John Wiley & Sons, Inc. v. Book Dog Books, LLC, 13 CIV. 816 WHP GWG, 2014 WL 1800820 (S.D.N.Y. May 7, 2014) (emphasis added).