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

Filing 112

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 110 Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES --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 110), # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(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 REQUESTS FOR
PRODUCTION OF DOCUMENTS AND INTERROGATORIES
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
Requests for Production of Documents and Interrogatories from defendants. 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:

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2.

The parties have met and conferred extensively regarding certain of plaintiffs’

document requests and interrogatories to the defendants Hotfile Corp. and Anton Titov
(“defendants”). Plaintiffs served an initial set of document requests and interrogatories on April
1, 2011, and defendants served their objections and responses on May 5, 2011. During the
parties’ meet and confer discussions, defendants’ counsel has indicated that defendants are
standing on the objections and limitations on production indicated in their responses to the
following requests: Requests For Production Nos. 5(i), 17, 28, and 31, and Interrogatory Nos. 4
and 10. For Request No. 31, defendants have indicated that they will provide, at most, a limited
number of documents specifically in response to this request – agreements between Hotfile
Entities and documents sufficient to show that Hotfile, Ltd. is a wholly owned subsidiary of
Hotfile Corp. – which are insufficient to fully disclose the extent to which each Hotfile Entity is
involved in the operation of Hotfile. Additionally, as to Request No. 28, though not indicated in
their written responses, defendants’ counsel stated in the meet and confer discussions that
defendants would not produce content files uploaded to Hotfile. The parties have conferred as to
all these requests and made a good faith effort to resolve the issues between the parties, but have
been unable to reach a resolution.
3.

Attached hereto as Exhibit A is a redacted copy of an excerpt of Defendants’

Supplemental Response to Plaintiffs’ Interrogatory No. 1, dated July 19, 2011, identifying the
contractors and employees of Hotfile Corp., which defendants have designated as Highly
Confidential. Plaintiffs have met and conferred with defendants regarding the redaction of
information contained in the response, and have agreed to redact names of individuals, as well as
other information not relevant to the purpose for which plaintiffs are submitting this exhibit,

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without waiving objections to the redaction of this information in other contexts. Exhibit A
indicates the Hotfile User Identification Number of 431206 for one of Hotfile’s contractors.
4.

Attached hereto as Exhibit B is a redacted copy of an excerpt of Defendants’

Responses to Plaintiffs’ First Set of Interrogatories, dated May 5, 2011, excerpted to show
defendants’ response to plaintiffs’ Interrogatory No. 9, which defendants have designated as
Highly Confidential. Interrogatory No. 9 requests identification of the 500 participants in the
Hotfile “Affiliate” programs that have received the largest cumulative payments from Hotfile,
and Hotfile User ID 431206 is included in the response. Plaintiffs have met and conferred with
defendants regarding the redactions to this exhibit, and have redacted the portions indicated here
at defendants’ request. Plaintiffs previously filed an unredacted version of this document under
seal at Docket #75.
5.

Attached hereto as Exhibit C are redacted excerpts of a spreadsheet produced by

defendants at bates numbers HF00000048 – HF00000330, which defendants have designated as
Highly Confidential, and which plaintiffs understand as purporting to show users that have been
terminated or suspended. Plaintiffs have met and conferred with defendants regarding the
redactions to this exhibit, and have redacted the User Identification Numbers here at defendants’
request. Persons under my supervision have analyzed the User Identification Numbers
corresponding to the top 500 highest paid Affiliates provided in defendants’ response to
plaintiffs’ Interrogatory No. 9 (Exhibit B) and the data in HF00000048 – HF00000330. This
analysis reveals that approximately 65% of individuals indicated in response to Interrogatory No.
9 are listed as being terminated for reasons indicating repeat copyright infringement, all on dates
after February 8, 2011, the date of the filing of the Complaint. (I have not included every

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redacted page in HF00000048 – HF00000330 listing users that appear to have been terminated
for repeat infringement, but such documentation may be provided at the Court’s request.).
6.

Attached hereto as Exhibit D are excerpts of printouts of publicly available posts

from the website forums.digitalpoint.com, at the URL indicated on the printouts, indicating that
some users have received payments from Hotfile, Ltd. (The printout has been edited to box the
relevant posts.)
7.

Attached hereto as Exhibit E 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.).
8.

Attached hereto as Exhibit F are redacted copies of email communications

produced by defendants at bates numbers HF00034459, HF00034587, and HF00034686, and
designated Confidential by defendants. Plaintiffs have met and conferred with defendants
regarding the redactions to this exhibit, and have redacted this exhibit as requested by
defendants.

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I declare under penalty of

the United States that the foregoing is true

perjury under the laws of

and correct.

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

()- f"

Duane C.~zza

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