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

Filing 129

RESPONSE in Opposition re 110 Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES and Memorandum of Law filed by Lemuria Communications, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Munn, Janet)

EXHIBIT “B”

FARELLA BRAUN+ MARTEL

L LP

Attorneys At Law
ANDREW LEIBNITZ

Russ Building / 235 Montgomery Street
San Francisco/CA 94104

[e-mail]
D 415.954.4932

T 415.954.4400 / F 415.954.4480
www.fbM.com

May 16,2011

Via E Mail ([e-mail])
-

Duane Pozza, Esq.
Jenner & Block
1099 New York Ave., NW
Washington, D.C. 20001-4412
Re:

Disney et al. v. Hotfile et al.

—

Subpoena To Lemuria Communications, Inc.

Dear Duane:
This letter commemorates our meet-and-confer discussion of May 9, 2011 regarding the
response of nonparty Lemuria Communications, Inc. ("Lemuria") to the subpoena of Plaintiffs
Disney et al. ("Plaintiffs" or "Disney"). .
Plaintiffs' Request For Production No. 1
We discussed that nonparty Lemuria will not produce any Hotfile content files. Plaintiffs
may attempt to obtain those documents directly from Hotfile, a defendant. Should such content
files ever be considered within Lemuria's possession, custody, or control, Lemuria would expect
to rely on the Electronic Communications Privacy Act in formulating its response.
Regarding Lemuria's agreement to produce nonprivileged documents in its possession,
custody, or control located after a reasonable search "relating to Lemuria's provision of hosting
services to Hotfile," we discussed the fact that Lemuria provides hosting services to Hotfile. If
any topic related to Lemuria is properly subject to discovery here, it is subsumed within this
general description. Thus, for example, Lemuria will not withhold any copyright holders'
takedown requests related to Hotfile received by Lemuria based on the notion that such requests
do not strictly relate to Lemuria's provision of hosting services to Hotfile. While I could not
identify on our phone call any Lemuri a documents withheld on this ground,' please understand
that Lemuria does not waive this objection.

' Without representing that such documents exist, I did note that communications between
Lemuria and Hotfile regarding recommendations of janitorial services would have no possible
relevance in this case.

Duane Pozza, Esq.
May 10, 2011
Page 2
Regarding Plaintiffs' demand for 141 documents pertaining to any Hotfile users,"
Lemuria stated in its objections that it could not possibly undertake to research whether every
individual in commimication with Lemuria uses Hotfile. However, subject to Lemuria's
objections, I made clear that Lemuria would produce documents if reasonably clear from the
context that the communicant was a Hotfile user. Specifically, as set forth above, Lemuria will
produce any takedown notices in its possession related to Hotfile, and will not attempt to argue
that such communicants do not sufficiently identify themselves as Hotfile users.
Plaintiffs' Request For Production No. 2
Regarding subparts (a) and (b) (for the sake of shorthand, referred to here as "joint
ownership" documents), Plaintiffs reserved the right to seek additional documents following
Lemuria's production of documents as indicated in its objections.
Regarding subpart (d) (regarding contracts), Lemuria will produce all nonprivileged
responsive documents relating to Lemuria's provision of hosting services to Hotfile to the extent
they exist.and are located after a reasonable search.
Regarding subpart (e) (regarding financial records), Lemuria will produce the documents
identified in its response to Request No. 11. Otherwise, Lemuria intends to stand on its
relevance objection. Any additional financial records can be sought directly from Hotfile, a
defendant, as opposed to nonparty Lemuria.
Regarding subpart (f) (formation of Lemuria), you asked whether Lemuria possessed any
additional documents such as communications with IncorporateNow regarding the formation of
Lemuria. No further documents exist.
Plaintiffs' Request For Production No. 3
You asked whether Lemuria is withholding any documents here. Lemuria is not. I
confirmed that, where Plaintiffs make a series of objections in their document responses and then
agree to produce documents, Plaintiffs are not standing on those objections in providing their
response.
Plaintiffs' Request For Production No. 4
This request calls for documents relating to services provided by Lemuria to non-Hotfile
entities. By definition, this request seeks irrelevant information. Absent further explanation of
the relevance of these documents, Lemuria will not provide documents in response to this
request.
Plaintiffs' Request For Production No. 5

Duane Pozza, Esq.
May 10, 2011
Page 3
I asked why nonparty Lemuria should provide any documents in response to this request,
which mirrors Request No. 35 to Hotfile. You agreed to table this request for now.
Plaintiffs' Request For Production No. 6
As discussed, Lemuria will produce its articles of incorporation and corporate bylaws in
response to this request.
Plaintiffs' Request For Production Nos. 7-8
Regarding these requests (essentially for documents sufficient to show the owners,
employees, and contractors of Lemuria), Plaintiffs will receive any existing responsive
documents as part of Lemuria's production relating to all documents regarding Lemuria's
provision of hosting services to Hotfile.
Plaintiffs' Request For Production No. 9
Plaintiffs seek all documents pertaining to meetings of Lemuria's board of directors or
other governing body. Absent further explanation of the relevance of these documents, Lemuria
will not provide documents in response to this request.
Plaintiffs' Request For Production No. 10
Plaintiffs seek "all documents pertaining to any Hotfile Litigation." To avoid the onerous
task of providing a privilege log, you agreed to limit the request to nonprivileged documents.
Beyond that, the parties agreed to disagree. To Lemuria, these documents remain collateral to
the instant dispute, and thus irrelevant. In any event, any further documents on Hotfile's
litigation can be sought directly from Hotfile itself, which is a party to this litigation. Absent
further discussion, Lemuria will not provide documents in response to this request.
Plaintiffs' Request For Production No. 11
Plaintiffs seek "all documents pertaining to any Hotfile Litigation." To avoid the onerous
task of providing a privilege log, you agreed to limit the request to nonprivileged documents.
Beyond that, the parties agreed to disagree. To Lemuria, these documents remain collateral to
the instant dispute, and thus irrelevant. In any event, any further documents on Hotfile's
litigation can be sought directly from Hotfile itself, which is a party to this litigation. Absent
further discussion, Lemuria will not provide documents in response to this request.
Plaintiffs' Request For Production No. 12
As discussed above, Lemuria will be producing no documents responsive to this request
beyond those identified in its existing response.

Duane Pozza, Esq.
May 10, 2011
Page 4
Please feel free to call if you have any questions.
Sincerely,

Andrew Leibnitz
26501\2604820.2