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

Filing 108

Plaintiff's MOTION to Compel RESPONSES TO SUBPOENA TO THIRD PARTY LEMURIA COMMUNICATIONS, INC. by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. Responses due by 8/22/2011 (Attachments: # 1 Text of Proposed Order PROPOSED ORDER)(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.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/
PLAINTIFFS’ MOTION AND MEMORANDUM TO COMPEL RESPONSES TO
SUBPOENA TO THIRD PARTY LEMURIA COMMUNICATIONS, INC.
Plaintiffs hereby move to compel the production of certain limited categories of
documents pursuant to the subpoena served by plaintiffs on April 4, 2011 on third party Lemuria
Communications, Inc. (“Lemuria”), the internet service provider for defendants’ website
hotfile.com (“Hotfile”). Lemuria is not a neutral third party to this litigation. Defendant Titov is
Lemuria’s owner, manager, president, and sole-listed officer and director. The only apparent
reason why Titov founded Lemuria was to ensure that Hotfile would have uninterrupted internet
service for its infringing activities. Given Lemuria’s close relationship with defendants, Lemuria
– which is also potentially one of the Doe defendants in this case – is likely to possess a trove of
highly relevant and discoverable documents, many of which concern the daily operation of
Hotfile’s business and Titov’s involvement with Hotfile. To avoid having to produce documents
incriminating Hotfile and Lemuria, Lemuria improperly attempts to narrow the scope of the
subpoena by limiting its responses only to documents pertaining to the “hosting services” that
Lemuria concedes it provides to Hotfile. But plaintiffs are entitled to all documents in Lemuria’s
possession relating to the operation of Hotfile, including the extent of Lemuria’s own

involvement. Accordingly, the Court should order Lemuria to produce all documents sought by
plaintiffs because they are relevant and discoverable.
The parties have met and conferred but have been unable to reach a resolution regarding
Lemuria’s objections to the following requests: 1(a), (b), and (d), 2(d) and (e), 4, 9, and 11. By
this motion, plaintiffs move to compel full responses to those requests.1
BACKGROUND
Defendant Titov is the owner, manager, President, and sole-listed officer and director of
Lemuria. See Declaration of Duane C. Pozza (“Pozza Decl.”) Exs. A-C. Titov founded
Lemuria, as he put it, “for the purpose of providing web-hosting services, in particular for
Hotfile.com.” Pozza Ex. A ¶ 5. Lemuria appears to be little more than a shell company for
Titov: it originally used a drop box as an address, has no apparent website offering internet
services, and does not appear to provide internet hosting services for anyone other than Hotfile.
Pozza Decl. ¶ 8; Pozza Ex. D; Declaration of Ian Foster in Support of Plaintiffs’ Motion for an
Order Preserving Evidence (Doc. # 15) ¶ 16. Lemuria has a contract with a wholly owned
subsidiary of defendant Hotfile Corp., a Bulgarian company called Hotfile, Ltd., and Titov
claims that Lemuria receives payment for web-hosting services. Pozza Ex. A ¶ 5. Indeed,
according to documents produced by third-party Paypal, Inc., Lemuria has been paid and
transferred out substantial amounts per month,2 see Pozza Exs. E & F – transfers which, by their
amount and number, are unlikely to pertain solely to the limited hosting services that Lemuria
provides to Hotfile.
Titov set up Lemuria only after Hotfile’s previous internet service provider (“ISP”)
received a subpoena under the Digital Millennium Copyright Act notifying it of Hotfile’s
1

The plaintiffs and Lemuria agreed to extend the time to bring this motion in order to further
meet and confer. At the Court’s July 8, 2011 status conference, the Court extended the time to
file any motions to compel that would otherwise be out of time under the Local Rules to July 22,
and in an Order dated July 21, 2011 (Dkt. #103), the Court further extended the time to file such
motions until August 3.
2

The parties have met and conferred regarding the confidentiality of the Paypal documents and
specifically, whether the specific amounts of incoming payments and outgoing transfers could be
filed without redaction. Defendants would not consent to the filing of such documents without
redaction of the specific dollar amounts. Plaintiffs therefore refer the court to Docket Entry 79,
previously filed under seal, which is an unredacted version of Exhibit E showing incoming
payment amounts to Lemuria. Plaintiffs are willing to provide unredacted versions of Exhibit F
under seal at the Court’s request.
2

infringement. Pozza Ex. G. At that point, Hotfile faced a substantial risk that its internet access
would be cut off based on its widespread infringing activities. See 17 § U.S.C. 512(i) (for ISP to
claim safe harbor from infringement liability, it must implement policy of terminating customers
that repeatedly engage in infringing activities). A legitimate ISP would be expected to terminate
such a blatant infringer such as Hotfile. Titov resolved this issue by forming his own ISP,
Lemuria, which would ensure that Hotfile had uninterrupted service irrespective of the mounting
accusations of copyright infringement against it. See Compl. ¶ 45.
Plaintiffs therefore have asked Lemuria to produce documents relating to its relationship
with defendants and the Hotfile website, such as communications with defendants and their
cohorts. These would likely provide direct (and incriminating) evidence of defendants’ business
activities in operating Hotfile, which, plaintiffs have alleged, are based on profiting from
infringement that defendants know of and actively encourage. See id. ¶¶ 24-34. Documents
sought by the subpoena in Lemuria’s possession would also be probative of whether Titov
created Lemuria not only to prevent Hotfile from losing ISP hosting services based on its
infringing activities, but also to enable Hotfile to engage in its infringing activities. The
requested documents will likely also provide evidence of Titov’s personal involvement in the
operation of Hotfile, which is directly relevant to plaintiffs’ claims against defendant Titov
personally and may also identify other operators of Hotfile – possibly including Lemuria itself –
which will be relevant to identifying the unnamed Doe defendants alleged to be involved in the
operation of Hotfile.
LEGAL STANDARD
Parties may seek discovery regarding “any nonprivileged matter that is relevant to any
party’s claim or defense,” and “[r]elevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.
R. Civ. P. 26(b)(1). For discovery requests to non-parties, courts weigh case-specific factors
such as relevance, the need for documents, the breadth, time period and particularity of the
requests against the burden imposed on the third party. See Echostar Satellite v. Viewtech, Inc.,
No. 10-60069-MC, 2010 WL 2822109, at *3 (S.D. Fla. July 16, 2010). The party opposing a
motion to compel discovery bears the burden of establishing that the requested discovery is
improper, unreasonable or burdensome. Id. at *2.

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ARGUMENT
I.

LEMURIA MAY NOT LIMIT ITS PRODUCTION TO ONLY DOCUMENTS
SHOWING THE FUNCTIONAL “PROVISION OF HOSTING SERVICES.”
Plaintiffs have sought straightforward discovery of the communications and agreements

between Hotfile and Lemuria, Lemuria’s role in the operation of Hotfile, and financial
arrangements between Lemuria and Hotfile. For each such request, Lemuria seeks to limit its
production solely to documents related to the “provision of hosting services to Hotfile,” arguing
that documents related to any other aspect of Lemuria’s relationship with Hotfile are not
relevant. Lemuria’s position is indefensible, apparently adopted to avoid disclosures that may
implicate defendants. Lemuria’s objections should be rejected.
A.

Plaintiffs’ Requests for Production Nos. 1(a), (b), (d), 2(d), (e), and 11.

Request for Production No. 1:
All documents pertaining to your relationship with the Hotfile Website, including:
a) All documents pertaining to communications with Defendants or any Hotfile
Entity.
b) All documents pertaining to Lemuria’s role in operating the Hotfile Website.
…
d) All documents pertaining to any contracts, agreements, undertakings, or
understandings pertaining to Defendants or the Hotfile Website.
Request for Production No. 2:
All documents pertaining to your relationship with any Hotfile Entity, including:
…..
d) All documents pertaining to any agreements, contracts, undertakings, or
understandings between Lemuria and any Hotfile Entity;
e) All documents pertaining to any and all financial arrangements, revenue sharing,
and accountings between Lemuria and any Hotfile Entity, including any revenue,
income, funds, or other valuable consideration exchanged between Lemuria and
any Hotfile Entity . . . .
Request for Production No. 11:
Documents sufficient to show all income received by Lemuria, directly or indirectly, in
connection with the Hotfile Website, Defendants, or any Hotfile Entity.

4

B.

Objections and Responses to Requests Nos. 1, 2, and 11.

Response to Request for Production No. 1:
Lemuria objects to this request on the grounds that it is overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence. Lemuria objects to this request as unduly burdensome to the extent it
seeks documents or information that can be obtained with less burden from the
parties to this litigation or other third parties.
Lemuria further objects to this request as vague and ambiguous,
particularly as to the use of the undefined phrases “Support Staff,”
“undertakings,” “understandings,” “response to,” and “actions taking.”
Moreover, the undefined phrases “Bandwidth,” “Internet Connectivity,” and
“Transit” appear to carry essentially the same meaning in relation to Lemuria, as
do the terms “Co-location space” and “Datacenter facilities.”
Lemuria further objects to this request as overbroad and unduly
burdensome to the extent that it seeks documents pertaining to any “Hotfile user”
as that term is defined in the subpoena. Lemuria cannot reasonably be expected
to know the identity of every “Hotfile user” unless individuals identify themselves
as such, and thus Lemuria undertakes no obligation to produce documents
exchanged with persons other than those who identify themselves as users of
Hotfile’s website.
Lemuria further objects to this request on the grounds that it seeks
confidential and private information that is protected by, among other things, the
Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq. and the Stored
Communications Act, 18 U.S.C. § 2701 et seq.
Lemuria further objects to this request as overbroad and unduly
burdensome to the extent that it seeks “All documents.” Lemuria further objects
to this request to the extent it seeks documents not in the possession, custody, or
control of Lemuria.
Subject to and without waiving the foregoing general and specific
objections, Lemuria responds as follows: Regarding subparts (a), (b), and (d),
Lemuria will produce all nonprivileged documents in its possession, custody, or
control located after a reasonable search relating to Lemuria’s provision of
hosting services to Hotfile. Regarding subparts (c), (e), (f), and (g), Lemuria will
produce all nonprivileged and responsive documents in its possession, custody, or
control located after a reasonable search.
Response to Request for Production No. 2:
Lemuria objects to this request on the grounds that it is overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible
evidence. Lemuria objects to this request to the extent it seeks documents or
information that can be obtained with less burden from the parties to this litigation
or other third parties.
Lemuria further objects to this request as vague and ambiguous,
particularly as to the use of the undefined phrases “formation,” “undertakings,”
“financial arrangements,” “revenue sharing,” “accountings,” and
“understandings.”
5

Lemuria further objects to this request as overbroad and unduly
burdensome to the extent that it seeks documents pertaining to any “Hotfile user”
as that term is defined in the subpoena.
Lemuria further objects to this request on the grounds that it seeks
confidential and private information that is protected by, among other things, the
Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq. and the Stored
Communications Act, 18 U.S.C. § 2701 et seq.
Lemuria further objects to this request on the grounds that it seeks
information not reasonably calculated to lead to the discovery admissible
evidence, particularly in its request for private financial information regarding
Lemuria that is unrelated to the present litigation.
Lemuria further objects to this request as overbroad and unduly
burdensome to the extent that it seeks “All documents.” Lemuria further objects
to this request to the extent it seeks documents not in the possession, custody, or
control of Lemuria.
Subject to and without waiving the foregoing general and specific
objections, Lemuria responds as follows: Lemuria will produce all nonprivileged
documents in its possession, custody, or control located after a reasonable search
relating to Lemuria’s provision of hosting services to Hotfile. Regarding subparts
(a) and (b), Lemuria will produce documents sufficient to show the ownership and
identity of management of Lemuria. Regarding subpart (c), Lemuria has
undertaken a reasonable search for documents sufficient to show joint ownership
of any property by Lemuria and Hotfile and found no responsive documents.
Regarding subpart (f), Lemuria has undertaken a reasonable search for responsive
documents and found no responsive documents other than articles of
incorporation and bylaws, which will be produced.
Response to Request for Production No. 11:
Lemuria objects to this request on the grounds that it is overbroad and
unduly burdensome.
Lemuria further objects to this request as vague and ambiguous,
particularly as to the use of the undefined phrases “in connection with” and
“sufficient to show,” and with respect to its reference to “income
received...indirectly.”
Lemuria further objects to this request on the grounds that it seeks
information not reasonably calculated to lead to the discovery admissible
evidence, particularly in its request for private financial information regarding
Lemuria that is unrelated to the present litigation.
Subject to and without waiving the foregoing general and specific
objections, Lemuria responds as follows: Lemuria will produce nonprivileged
documents in its possession, custody or control located after a reasonable search
sufficient to show payments from Hotfile to Lemuria related to Lemuria’s
provision of hosting services to Hotfile.
C.

Grounds Assigned for Defendants’ Objections:

The grounds are set forth in the objections.

6

D.

Bases for Compelling Production as to Requests Nos. 1(a), (b), (d), 2(d), (e),
and 11:
1.

The Court Should Order Lemuria to Produce Documents Concerning
Hotfile and Lemuria’s True Relationship With Hotfile.

Requests 1(a), (b), (d), and 2(d) seek documents pertaining to (1) communications with
defendants or any “Hotfile Entity” (defined to be other entities such as Hotfile, Ltd. that are
involved in the operation of Hotfile); (2) Lemuria’s role in operating the Hotfile website; and (3)
any agreements or understandings with defendants or any Hotfile Entity. Given the intertwined
business relationship between Lemuria and Hotfile, and the close relationship between the
defendant Titov and Lemuria, all of these requests are directed to the discovery of relevant
evidence pursuant to Fed. R. Civ. P. 26(b)(1). Lemuria’s position that plaintiffs limit the scope
of the subpoena to only documents that strictly relate to Lemuria’s “hosting services” for Hotfile
is untenable.3
Because Hotfile’s operations are overwhelmingly devoted to infringement, see Compl.
¶¶ 3-6, 24-27, 45, discovery into Lemuria’s communications and contracts with the defendants or
other third-party affiliates or entities involved in Hotfile’s operations are clearly relevant, even if
those documents do not specifically discuss “hosting services.” For example, Lemuria may have
communications with Hotfile related to Hotfile’s business operations that are unrelated to
hosting, or prior to the time that Lemuria even began providing “hosting services.” As such,
documents in Lemuria’s possession about Hotfile’s operations are relevant to whether defendants
have sought to induce infringement. See, e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
Ltd., 454 F. Supp. 2d 966, 976-83, 989 (C.D. Cal. 2006) (relying on documents about
defendants’ business operations, including third party communications, in holding that
defendants’ business model was built on infringement and defendants were liable for
inducement). Plaintiffs are entitled to seek such documents from third parties in discovery. See,
e.g., Armor Screen Corp. v. Storm Catcher, Inc., No. 07-81091-Civ, 2009 WL 455428, at *3
(S.D. Fla. Feb. 23, 2009) (holding that party may seek discovery from non-party regarding
communications and agreements with the party, where non-party provided services related to
3

In an effort to narrow or avoid this dispute, plaintiffs’ counsel has sought information from
Lemuria’s counsel as to whether Lemuria in fact provided other services to Hotfile, to determine
whether there may be services Lemuria is providing Hotfile that plaintiffs might exclude (or if
any documents were being withheld on this basis at all). However, Lemuria’s counsel would not
provide that information. Pozza Decl. ¶ 3.
7

claims in case, as documents were “reasonably calculated to lead to the discovery of admissible
evidence”).
Indeed, Lemuria appears to be more closely involved with Hotfile than merely hosting its
website. Documents produced by another third party showed that defendant Titov used a
Lemuria email address to conduct Hotfile business, including communicating with Hotfile
subscribers and with copyright holders. See Pozza Exs. H & I. Those documents suggest that
Lemuria has been involved in Hotfile’s activities or performed other Hotfile-related services.
This is corroborated by financial records showing substantial amounts being paid to Lemuria, as
well as substantial amounts of money being transferred out of Lemuria’s account. Pozza Exs. E
& F. The amount of transfers to Lemuria exceeds what would be reasonably expected for
providing hosting services to Hotfile. While Titov has claimed in another litigation that Hotfile’s
payments are all related to the provision of hosting services, Pozza Ex. A ¶ 5, the plaintiffs are
entitled to discovery to test those claims rather than relying on Titov’s self-serving assertion.
Production of the additional documents sought by plaintiffs is directly relevant to defendants’
and Lemuria’s involvement in Hotfile’s operations and infringing activities. See Echostar, 2010
WL 2822109, at *5 (granting motion to compel relevant discovery against reseller of unlawful
products in part because party alleged that reseller was not a “wholly independent third-party”
but instead facilitated or encouraged sale of products with improper purpose).
The requested documents will also help establish the extent of Titov’s involvement in
Hotfile’s infringing activities, including whether Titov created Lemuria in part to protect Hotfile
from the potential loss of ISP hosting services. Plaintiffs have alleged that Titov is liable for
Hotfile’s infringement because he personally directs the activities of Hotfile in a number of
ways. See Compl. ¶¶ 12, 45. Plaintiffs are therefore entitled to seek documents showing his
personal involvement. See, e.g., Southern Bell Tel. & Tel. Co. v. Associated Tel. Directory
Publishers, 756 F.2d 801, 811 (11th Cir. 1985) (“An individual, including a corporate officer,
who has the ability to supervise infringing activity and has a financial interest in that activity, or
who personally participates in that activity is personally liable for the infringement.”) (quotation
marks omitted); Playboy Enters., Inc. v. Starware Pub’g Corp., 900 F. Supp. 438, 441-42 (S.D.
Fla. 1995) (president and shareholder may be found jointly liable for infringement based on
personal participation). Lemuria’s communications and agreements with Hotfile – whether or
not related to hosting services – will show the extent of Titov’s involvement in Hotfile’s
8

activities. They will also show whether Titov personally participated in infringement, as
plaintiffs have alleged, in part by “establish[ing] Lemuria to avoid interruption of critical Internet
hosting services to Hotfile.” Compl ¶ 45.
Finally, the requested documents are directed to identifying which entities are in fact
operating Hotfile. Indeed, Request 1(b) specifically calls for documents related to Lemuria’s
role in operating Hotfile – a key question given Titov’s use of Lemuria email accounts to
conduct Hotfile-related business. The propounded discovery seeks to identify unnamed Doe
defendants who plaintiffs have alleged to be involved in Hotfile’s operations. See United States
ex rel. Heater v. Holly Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1036 (S.D. Fla. 2007) (plaintiffs
may conduct discovery to identify Doe defendants).
2.

The Court Should Order Lemuria to Produce Documents Concerning
Financial Arrangements Between Lemuria and Hotfile.

Lemuria also improperly seeks to limit its production of discoverable financial
information. Request 2(e) seeks documents pertaining to financial arrangements, revenue
sharing, and accountings between Lemuria and any Hotfile Entity, and Request 11 seeks
documents “sufficient to show” income received by Lemuria, directly or indirectly, in connection
with the Hotfile Website, defendants or any Hotfile Entity. As with documents related to
communications and agreements (discussed above), the requested financial documents are
relevant to determining Titov’s role in operating Hotfile and whether other entities (including
Hotfile, Ltd.) are involved in operating Hotfile as well. Moreover, the requested documents are
directly relevant to whether Lemuria plays a more direct role in the operation of Hotfile –
including as a conduit for Hotfile’s revenues, given the substantial amounts paid to and
transferred from Lemuria.
Lemuria, however, is improperly seeking to limit its response to these two requests solely
to documents sufficient to show income from defendant Hotfile Corp. to Lemuria only to the
extent that they relate to the provision of hosting services.4 Lemuria’s proposed limitations are
far too narrow. First, Titov himself has claimed that Lemuria has a contract with the entity
Hotfile, Ltd., not Hotfile Corp., for hosting services. Pozza Ex. A ¶ 5. As such, limiting the
response to Hotfile Corp., as Lemuria has done, will likely deprive the plaintiffs of full

4

This limitation is not reflected in Lemuria’s written responses to Request 2(e), but has been
made clear by Lemuria’s counsel during the meet and confer process. Pozza Decl. ¶ 4.
9

information about numerous other Hotfile-related payments, whether by Hotfile, Ltd. or other
entities. Second, as noted above, payments to Lemuria have been substantial. The financial
evidence that plaintiffs seek would be probative of whether these payments are in fact for web
hosting or for another Hotfile-related purpose, and whether Lemuria is operating at arm’s-length
from Hotfile or rather is involved in the operation of Hotfile.
For these reasons, Lemuria’s limitation on response to Requests 1(a), (b), (d), 2(d), 2(e),
and 11 should be overruled, and a full response should be provided.
II.

THE COURT SHOULD ORDER LEMURIA TO PRODUCE DOCUMENTS
RELATED TO TITOV’S OPERATION OF LEMURIA.
Requests No. 4 and 9 seek documents that would be probative of whether Lemuria is

being operated as an independent entity by Titov or merely for the purpose of serving Hotfile,
and whether it is adhering to corporate formalities. That is relevant to the complaint’s
allegations that Titov established and used Lemuria for the sole purpose of facilitating Hotfile’s
infringement. Compl. ¶ 45. Lemuria has no basis for refusing production of these documents.
A.

Requests for Production Nos. 4 and 9.

Request for Production No. 4:
Documents sufficient to show each service Lemuria provides to any person other than
Defendants or any Hotfile Entity.
Request for Production No. 9:
All documents pertaining to meetings of Lemuria’s board of directors or other governing
body, including documents sufficient to show:
a) The name and title of every individual attending each meeting;
b) The agenda for each meeting;
c) The date and time of each meeting;
d) The place of each meeting; and
e) All minutes or any notes pertaining to each meeting.
B.

Objections and Responses to Requests for Production No. 4 and 9.

Response to Request for Production No. 4:
Lemuria objects to this request on the grounds that it is overbroad, unduly burdensome,
and not reasonably calculated to lead to the discovery of admissible evidence. Practically by
definition, Lemuria’s provision of services to anyone other than a defendant in this action lacks
any relevance to the allegations in the Complaint. To date, Plaintiffs have identified no reason to

10

believe otherwise, nor have Plaintiffs identified any phrase or sentence in the Complaint to
which responsive documents would be relevant.
Lemuria objects to this request to the extent it seeks documents or information that can be
obtained with less burden from the parties to this litigation or other third parties.
Lemuria further objects to this request as vague and ambiguous, particularly as to the use
of the undefined phrase “service.”
Lemuria further objects to this request on the grounds that it seeks confidential and
private information that is protected by, among other things, the Electronic Communications
Privacy Act, 18 U.S.C. § 2510 et seq. and the Stored Communications Act, 18 U.S.C. § 2701 et
seq.
Lemuria remains willing to meet-and-confer with Plaintiffs regarding this request.
Response to Request for Production No. 9:
Lemuria further objects to this request as overbroad and unduly burdensome to the extent
that it seeks “All documents.”
Lemuria further objects to this request as not reasonably calculated to lead to the
discovery of admissible evidence insofar as it seeks information wholly unrelated to the present
litigation or Lemuria’s alleged involvement therein.
Lemuria further objects to this request insofar as it seeks information protected from
discovery under the attorney-client privilege, the attorney work product doctrine, the joint
defense privilege, and/or any other applicable privilege or doctrine recognized under the law.
Lemuria remains willing to meet-and-confer with Plaintiffs regarding this request.
C.

Grounds Assigned for Defendants’ Objections:

The grounds are set forth in the objections.
D.

Bases for Compelling Production as to Requests Nos., 4 and 9:

Request No. 4 seeks documents “sufficient to show” whether Hotfile provides services to
an entity other than Hotfile. Lemuria argues that this information is not relevant because it
concerns services to entities other than Hotfile. But, if Lemuria does not provide services to
other entities, then that is probative of the purpose for which Lemuria was established. The
requested documents are relevant to the central issue of whether Titov established Lemuria for
the sole or primary purpose of shielding Hotfile from being terminated for its infringing conduct.
Supra at 2.
Request No. 9 seeks corporate Board records. This request also calls for relevant
information because it seeks documents that would show whether Lemuria is engaged in any
legitimate activities other than serving Hotfile and whether it is following corporate formalities.
Lemuria has stated that it will only produce Board records that are related to Lemuria’s provision
of hosting services to Hotfile. Pozza Decl. ¶ 4. But again, plaintiffs are seeking to determine
whether Lemuria is engaged in any other legitimate operations, so production of Board minutes

11

limited only to Hotfile is insufficient. As such, the Court should hold that Lemuria’s Board
records are relevant and discoverable.
CONCLUSION
The Court should compel a complete production of documents in response to Requests
Nos. 1(a), (b), and (d), 2(d) and (e), 4, 9, and 11.

Dated: August 3, 2011

Respectfully submitted,
By: /s/ Karen L. Stetson
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

12

CERTIFICATE OF GOOD FAITH CONFERENCE
I HEREBY CERTIFY that, pursuant to Local Rule 7.1(a)(3), U.S. District Court for the
Southern District of Florida, counsel for plaintiffs have conferred with counsel for Lemuria
Communications, Inc. in a good faith effort to resolve the issues raised in this Motion without
court action, but have been unable to do so, as described in the accompanying Declaration of
Duane C. Pozza.

Dated: August 3, 2011

Respectfully submitted,
By: /s/ Karen L. Stetson
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

13

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd Day of August, 2011, I served the following
document via overnight delivery to Andrew Leibnitz, counsel for Lemuria Communications, Inc.
at his listed address on the attached service list.
In addition, I served the following document on all counsel of record on the attached
service list via the Court’s CM/ECF filing system:
Plaintiffs’ Motion and Memorandum to Compel Responses to Subpoena to Third
Party Lemuria Communications, Inc.
I further certify that I am admitted to the United States Court for the Southern District of Florida.
By: /s/ Karen L. Stetson
Karen L. Stetson

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SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-JORDAN

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
Attorney for Defendants Hotfile Corp. and
Anton Titov

Attorneys for Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

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