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

Filing 109

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 108 Plaintiff's MOTION to Compel RESPONSES TO SUBPOENA TO THIRD PARTY LEMURIA COMMUNICATIONS, INC. --NOTICE OF FILING DECLARATION OF DUANE C. POZZA IN SUPPORT OF MOTION TO COMPEL-- (Attachments: # 1 Affidavit DECLARATION OF DUANE C. POZZA IN SUPPORT OF MOTION TO COMPEL (DE 108), # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(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.
/

DECLARATION OF DUANE C. POZZA IN SUPPORT OF
PLAINTIFFS’ MOTION TO COMPEL RESPONSES TO SUBPOENA TO
THIRD PARTY LEMURIA COMMUNICATIONS, INC.
I, Duane C. Pozza, 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.
(“plaintiffs”). I submit this declaration in support of Plaintiffs’ Motion to Compel Responses to
Subpoena to Third Party Lemuria Communications, Inc (“Lemuria”). 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. If called to testify as a
witness, I would testify as follows:

1

2.

The parties have met and conferred extensively regarding plaintiffs’ subpoena to

Lemuria. Plaintiffs served the subpoena to Lemuria on April 4, 2011, and Lemuria served its
objections on April 18, 2011. Counsel for plaintiffs and Lemuria met and conferred on May 9,
2011 and June 13 and 20, 2011. During those meet and confer discussions, Lemuria’s counsel
has made clear that Lemuria will not produce all of the requested documents and information
responsive to the following requests: Request Nos. 1(a), (b), and (d), 2(d) and (e), 4, 9, and 11.
For each of those requests, other than 2(e), described below, Lemuria is standing on the
objections and limitations on production indicated in its responses. Counsel for plaintiffs and
Lemuria have conferred as to these requests and made a good faith effort to resolve the issues
between the parties, but have been unable to reach a resolution. Relevant portions of the meet
and confer discussion on particular requests are described below.
3.

Regarding Request Nos. 1(a), (b), (d), and 2(d) seeking documents concerning

Lemuria’s relationship with Hotfile, Lemuria has restricted its production to documents
pertaining to “the provision of hosting services to Hotfile.” During the meet and confer process,
in an attempt to address Lemuria’s relevance objection to producing the requested data,
plaintiff’s counsel sought clarification as to whether Lemuria provided any other services to
Hotfile to determine whether there might be other services provided that may be excluded from
the request. Lemuria’s counsel would not identify any other specific services that Lemuria
provided to Hotfile.
4.

During the meet and confer process, plaintiffs and Lemuria also discussed

Request No. 2(e) seeking documents pertaining to any financial arrangements between Lemuria
and any Hotfile Entity. Although Lemuria’s written responses indicated that it was producing
“all nonprivileged documents in its possession, custody, or control located after a reasonable

2

search relating to Lemuria’s provision of hosting services to Hotfile,” Lemuria’s counsel further
limited its response during the meet and confer process to the documents to be produced in
response to Request No. 11, which include documents sufficient to show income from defendant
Hotfile Corp. to Lemuria related to the provision of hosting services. Further, in our meet and
confer discussions, counsel for Lemuria has indicated that Lemuria’s production in response to
Request No. 9 would be limited to Board records related to Lemuria’s provision of hosting
services to Hotfile.
5.

Attached hereto as Exhibit A is a true and correct copy of the Declaration of

Anton Titov in Support of Lemuria Communications Inc.’s Motion to Dismiss filed by Lemuria
Communications Inc. on December 20, 2010 in Perfect 10, Inc. v. Hotfile Corp. et al., No. 3:10cv-02031-MMA-POR (S.D. Cal.).
6.

Attached hereto as Exhibit B is a true and correct copy of the Articles of

Incorporation of Lemuria Communications Inc. filed with the Florida Department of State on
October 15, 2009, and publicly available on and printed from the Florida Department of State
website.
7.

Attached hereto as Exhibit C is a true and correct copy of Articles of Amendment

to the Articles of Incorporation of Lemuria Communications Inc., signed by Anton Titov as
“President” of Lemuria Communications Inc., filed with the Florida Department of State on
September 3, 2010, and publicly available on and printed from the Florida Department of State
website.
8.

Attached hereto as Exhibit D is a true and correct copy of an email message sent

by Constantin Luchian, on behalf of Lemuria Communications Inc., to the Florida Department of
State on October 20, 2009, and publicly available on and printed from the Florida Department of

3

State website, requesting that the principal place of business address and mailing address for
Lemuria to be changed to 401 E. Las Olas Blvd., Suite 130-508, Fort Lauderdale, FL 33301.
The UPS Store website, http://www.theupsstorelocal.com/4356/, indicates that UPS Store #4356
is located at 401 E. Las Olas Blvd., Suite 130, Fort Lauderdale, FL 33301. Persons under my
supervision telephoned UPS Store #4356 and spoke with a UPS employee who confirmed that no
other businesses are located at that address and suite number, and that the store provides
customers with rented mailboxes at that address and suite number. Persons under my
supervision also performed a general Internet search for Lemuria Communications Inc., which
turned up no apparent website for Lemuria.
9.

Attached hereto as Exhibit E is a redacted copy of the Paypal business account

information for Lemuria Communications, Inc. produced by Paypal, Inc. (“Paypal”). This
document has been designated as “Confidential” according to the terms of the Protective Order
entered in this case. Plaintiffs have met and conferred with Lemuria regarding redactions to this
exhibit, and have redacted certain information at the request of Lemuria. An unredacted version
of this exhibit has been filed under seal at Docket #79.
10.

Attached hereto as Exhibit F is a redacted copy of Lemuria’s withdrawal

information from Lemuria’s Paypal account produced by Paypal. This document has been
designated as “Confidential” according to the terms of the Protective Order entered in this case.
Plaintiffs have met and conferred with Lemuria regarding redactions to this exhibit, and have
redacted certain information at the request of Lemuria.
11.

Attached hereto as Exhibit G is a true and correct copy of an excerpted portion of

the court-issued subpoena, in the matter of In re: Corbin Fisher: The identification of John Does
1-500 Pursuant to the Digital Millennium Copyright Act of 1998, No. 09-MC-61349, issued by

4

the U.S. District Court for the Southern District of Florida on August 28, 2009 and directed at
Webazilla, LLC, the former Internet Service Provider for Hotfile.
12.

Attached hereto as Exhibits H and I are redacted copies of email communications

produced by third party Constantin Luchian at bates numbers LUCHIAN 0526-27 and 0424-28.
These documents have been designated as “Confidential” according to the terms of the
Protective Order entered in this case. Plaintiffs have met and conferred with Lemuria regarding
redactions to this exhibit, and have redacted certain information at the request of Lemuria.

5

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

Executed on August 3,2011, at Washington, D.C.

Jl-~zza

6