Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 106

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 104 Plaintiff's MOTION for Protective Order PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER REGARDING PLAINTIFFS' ANTIPIRACY INVESTIGATIONS AND ENFORCEMENT PROCEDURES --NOTICE OF FILING DECLARATION OF LUKE C. PLATZER IN SUPPORT OF MOTION FOR PROTECTIVE ORDER (DE 104) (Attachments: # 1 Affidavit DECLARATION OF LUKE C. PLATZER IN SUPPORT OF PLAINTIFFS' MOTION FOR PROTECTIVE ORDER, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13)(Stetson, Karen)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-JORDAN

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,

Plaintif,
v.

HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/

DECLARATION OF LUKE C. PLATZER
I, LUKE PLATZER, hereby declare as follows:
1. I am a partner at the law firm of Jenner & Block LLP, and counsel to the plaintiffs

Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios
Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment Inc. in

this action ("Plaintiffs"). The statements made in this declaration are based on my personal
knowledge including on information provided to me by colleagues or other personnel working
under my supervision on this case.
1. Attached hereto as Exhibit 1 is a true and correct copy of excerpts of specific

requests for production from Defendants' First Set of

in this Action.

Requests for Production issued to Plaintiffs

2. Attached hereto as Exhibit 2 is a true and correct copy of excerpts of specific

requests for production from Defendants' Second Set of Requests for Production issued to
Plaintiffs in this Action.
3. Attached hereto as Exhibit 3 is a true and correct copy of a 30(b)(6) notice

(omitting attachments) served on Plaintiff Warner Bros. Entertainment Inc. in this Action.
4. Attached hereto as Exhibit 4 is a true and correct copy of a subpoena to DtecNet,

Inc. that Defendants served upon Plaintiffs in this Action.
5. Attached hereto as Exhibit 5 is a true and correct copy of the cover page of a

subpoena to MiMTiD Corp. that Defendants served upon Plaintiffs in this Action. With respect
to the topics that are the subject of

this motion, the substance of

the subpoena is the same as the

full subpoena attached as Exhibit 4.
6. Attached hereto as Exhibit 6 is a true and correct copy of the cover page of a

subpoena to BayTSP, Inc. that Defendants served upon Plaintiffs in this Action. With respect to
the topics that are the subject of

this motion, the substance of

the subpoena is the same as the full

subpoena attached as Exhibit 4.
7. Attached hereto as Exhibit 7 is a true and correct copy of the cover page of a

subpoena to Peer Media Technologies that Defendants served upon Plaintiffs in this Action.
With respect to the topics that are the subject of

this motion, the substance of

the subpoena is the

same as the full subpoena attached as Exhibit 4.
8. Attached hereto as Exhibit 8 is a true and correct copy of the cover page of a

subpoena to OpSec Security Group pIc that Defendants served upon Plaintiffs in this Action.
With respect to the topics that are the subject of

this motion, the substance of

same as the full subpoena attached as Exhibit 4.

2

the subpoena is the

9. Attached hereto as Exhibit 9 is a true and correct copy of the declaration of Lance

Griffn, in-house counsel for Plaintiff Disney Enterprises, Inc.

the declaration of

10. Attached hereto as Exhibit 10 is a true and correct copy of

Twentieth Century Fox Film Corporation.

Betsy Zedek, in-house counsel for Plaintiff

11. Attached hereto as Exhibit 11 is a true and correct copy of the declaration of

Universal City Studio Productions, LLLP.

Steven Kang, in-house counsel for Plaintiff

12. Attached hereto as Exhibit 12 is a true and correct copy of the declaration of

Vicki Solmon, in-house counsel for Plaintiff Columbia Pictures Industries, Inc.
13. Attached hereto as Exhibit 13 is a true and correct copy of the declaration of
Warner Bros. Entertainment Inc.

David Kaplan, in-house counsel for Plaintiff

14. I have been engaged in repeated discussions with Deepak Gupta and Roderick

Thompson, counsel for Defendants, regarding Defendants' discovery requests to Plaintiffs that
relate to Plaintiffs' investigation of

the Hotfie Website and their issuance of

notifications of

infringement to Hotfie and to Lemuria Communications. These negotiations were ongoing
when Defendants served their subpoenas on Plaintiffs' antipiracy vendors, and I notified
Defendants' counsel of my intent to expand our negotiations to encompass such materials insofar
as their requests addressed the same topics as those to which Plaintiffs had objected in
Defendants' requests to Plaintiffs.
15. During the ongoing negotiations with Mr. Gupta and Mr. Thompson, I expressed

piracy process and pre-Complaint

Plaintiffs' position that materials related to Plaintiffs' anti

investigation of Hotfie were, as a general proposition, not relevant to the claims in this action.
Mr. Gupta and Mr. Thompson explained their theory that such discovery was relevant to proving

whether Plaintiffs were "complying with their duties under the DMCA" They also claimed that

3

Plaintiffs' takedown process generally was relevant to proving Defendants' entitlement to claim
Defendants' controlling the

the safe harbor under the DMCA, as well as to the feasibility of

the files on their website. I articulated Plaintiffs' disagreement with Defendants'

contents of

theories of relevance and also explained Plaintiffs' position that ifthe requested materials were
relevant to any of

Defendants' theories at all, any relevance was marginal and was outweighed

by the potential prejudice to Plaintiffs from improper disclosure.
16. Plaintiffs are producing to Defendants the takedown notices they issued to Hotfile

and their records of Hotfie's responses to such notices. Plaintiffs have also agreed to produce
documents showing different providers of

video fingerprinting technology (a technology

commonly used to identify copyrighted movies and television programs represented within a

digital fie), as well as to conduct a search for nonprivileged documents that analyze the
effectiveness of such technology in applications involving content hosted at on online location.
If Defendants were to agree to withdraw their further document requests aimed at Plaintiffs'

process for investigating and responding to infringement online, I also offered to have each
Plaintiff

seat a 30(b)(6) deponent to testify regarding each Plaintiffs' general policies and

procedures for investigating infringement on Hotfie and issuing notices of infringement, so long
as such testimony would remain at a level of generality that would not provide a roadmap for

evading those antipiracy efforts. Defendants declined my offer, and Mr. Gupta and I agreed that
the meet and confer was concluded on the basis of the impasse we had reached on this as well as
other issues.
17. Plaintiffs notified Defendants of

their intent to file this motion a few weeks ago,

but deferred filing based on the Court's June 27, 2011 order denying without prejudice the

parties' joint motion to extend to sixty days the time to file discovery motions. In accordance

4

with the Court's instructions at the July 8, 2011 status conference to fie such motions by Friday,
July 22, 2011, I confirmed earlier this week that Defendants were not open to withdrawing their
attempts to take discovery of Plaintiffs' antipiracy process in exchange for the information
Plaintiffs had previously offered as described in paragraph 16 above.
18. In addition to the work the vendors perform for Plaintiffs directly, Plaintiffs'
the vendors

outside counsel at Jenner & Block worked closely with DtecNet, Inc., one of

subpoenaed by Defendants in this action retained by the MP AA, in order to analyze Hotfile as a
potential

litigation target, to analyze potential claims against Hotfile, and to gather information

regarding Hotfie's infringement of

the Plaintiffs' works. DtecNet worked at the direction of

Jenner & Block attorneys, Duane Pozza and Rochelle Lundy, during this process.

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 22d day of July, 2011 in Washington, DC.

5

two