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 “C”

Page 1 of 21

Message

Leibnitz, Andrew (21) x4932
From:

Pozza, Duane [[e-mail] ]

Sent:

Friday, June 17, 2011 11:15 AM

To:

Leibnitz, Andrew (21) x4932

Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Andy,
On our call Monday you indicated that additional Lemuria documents were in "processing." What is the
status of those? Lemuria's production to date has consisted almost entirely of takedown notices. Our
final scheduled discussion to attempt to resolve any remaining issues is Monday, so we should have
additional documents before then.
To summarize our discussion on Monday, I understand that the plaintiffs and Lemuria are currently at an
impasse on Request 1, subparts (a), (b), and (d), Request 2, subpart (d), and Requests 7 and 8, in regard
to Lemuria's objection to producing documents other than those related to Lemuria's provision of
hosting services to Hotfile. You are considering the point about the relevance to Titov's personal
participation in operating Hotfile, but unless I hear otherwise Monday, my understanding is that
defendants do not intend to change their position. You also have not agreed to produce any additional
documents in response to Request 2, subparts (a) and (b), and have indicated that we are at an impasse
on producing any documents in response to Request 4. As for Request 2, subpart (e) and Request 11,
we appear to be an at impasse but will discuss this further next Monday. We were unable to discuss the
remaining requests on our call this week, but will discuss them next Monday in an effort to resolve our
issues prior to the plaintiffs needing to bring a motion to compel. Let me know if I've misunderstood
Lemuria's position on any of the above.
Thanks,
Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Monday, June 13, 2011 11:19 AM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Duane:
Yes, there will be more Lemuria documents. I'm working on them.
It was a struggle to get time at 2pm on Wednesday, Duane. In case this helps, I have a hard stop at 3pm
that day too, so we will both be motivated to move quickly. But I understand that 2pm is not most
convenient for you, so let me know if you'd prefer to try to schedule for some other time. For example,
next Monday is still open for me.
I'll be offline now for some time. Mind sending me your direct phone number?
Regards,
ANDY
Original Message

From: Pozza, Duane [mailto:[e-mail]]
Sent: Monday, June 13, 2011 8:09 AM
To: Leibnitz, Andrew (21) x4932

6/20/2011

Page 2 of 21

Message

Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Andy, feel free to just call me directly at 2 Pacific, if that works for you. We received a production today
from Lemuria, bates labeled LEMURIA 00000001-00006542. Is that the extent of Lemuria's production, or
do you expect that more is coming?
Can we start at 1 Pacific on Wednesday (or earlier)? I have an engagement beginning at 5 Eastern — I can
still meet during that time but would prefer an earlier start if possible.
Thanks,
Duane
From: [e-mail] [mailto:[e-mail]]
Sent: Monday, June 13, 2011 10:31 AM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Let's try for 2pm PST Wednesday.
Do you have a dial-in for today at 2pm PST, or shall I just call you directly?
Original Message
From: Pozza, Duane [mailto:[e-mail]]
Sent: Monday, June 13, 2011 5:45 AM
To: Leibnitz, Andrew (21) x4932
Subject: Re: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Andy, I can start at 2 Pacific. I could also start 15 minutes or half an hour before that, to make sure
we have time to fully discuss all of it.
I am free Wednesday afternoon, and will check on what times work best. Do you have a time in
mind?
Thanks,
Duane
From: [e-mail] [mailto:[e-mail]]
Sent: Monday, June 13, 2011 12:35 AM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Duane:
How much time do you think we need for Lemuria on Monday? I have a hard stop at 3:00p PST.
Shall we move our start time up to 2:00p?
Shall we try to set a time to discuss Hotfile's discovery responses on Wednesday afternoon?
Regards,
ANDY
Original Message
From: Pozza, Duane [mailto:[e-mail]]
Sent: Thursday, June 09, 2011 7:51 AM
To: Leibnitz, Andrew (21) x4932

6/20/2011

Page 3 of 21

Message

Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Yes, though it is a summary of our current state of our disagreements as I understand them,
not a complete recapitulation.
-Duane
From: [e-mail] [mailto:[e-mail]]
Sent: Thursday, June 09, 2011 10:35 AM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Duane:
guess what I'm asking is, does your e-mail below reflect the complete current state of our
disagreements from your perspective?
Regards,
ANDY
Original Message
From: Pozza, Duane [mailto:[e-mail]]
Sent: Thursday, June 09, 2011 7:27 AM
To: Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Great, thanks, Andy. Also, just to be clear, the plaintiffs' positions as a described in
my email below reflect our current positions after a month of emails on this — the
email is not meant as a complete recapitulation. I look forward to seeing the
documents and discussing this on Monday at 2:15 Pacific. Thanks,
Duane
From: [e-mail] [mailto:[e-mail]]
Sent: Wednesday, June 08, 2011 9:26 PM
To: Pozza, Duane
Subject: Re: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Duane:
In answer to your question below, I expect to have documents in your hands before
our next call.
Regards
Andy
From: Pozza, Duane [mailto:[e-mail]]
Sent: Wednesday, June 08, 2011 06:13 PM
To: Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Andy, I can meet and confer on Tuesday beginning at 12:30 Pacific / 3:30 Eastern.
If you think there are any inaccuracies in my email below, we should certainly discuss
them. One reason I have been pushing for a call is to talk about these issues and be

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Message

clear on Lemuria's position. On the board meeting records, for example, your May 27
email says that Lemuria's production on this will be "subject to the contours set forth
in its responses and objections," and Lemuria's response to the request for board
records (Request No. 9) is just a blanket objection. Your May 10 letter also states that
Lemuria will not produce documents in response to Request No. 9. You may have
previously meant to convey the position stated in your email yesterday (as you
originally did on our call), but my email is hardly inaccurate given these more recent
statements of Lemuria's position.
I'll also ask again — when will Lemuria begin production of responsive documents?
I do look forward to trying to resolve this cooperatively. Thanks,
Duane
From: [e-mail] [mailto:[e-mail]]
Sent: Tuesday, June 07, 2011 10:37 AM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to Lemuria
Duane:
I am unavailable this week to further confer regarding Lemuria. However, I can meet
next Tuesday, June 14, 2011, starting at 12:30p.
Does your email below represent Plaintiffs' complete attempt to commemorate our
disagreements? It is inaccurate, as even a review of my prior e-mail (attached to
yours) would help serve to reveal. For example, my e-mail specifically addressed
Plaintiffs' demand for "board meeting minutes" related to provision of hosting services.
How can you contend that Lemuria has refused to produce any existing and
responsive documents? On April 18, 2011, Lemuria has agreed to produce all existing
nonprivileged documents in its possession, custody, or control located after a
reasonable search related to Lemuria's provision of hosting services to Hotfile. To the
extent board meeting minutes fall within that.category and exist, they will be produced.
While I remain unclear on what Plaintiffs mean by their demand for "Lemuria's
corporate documents," Plaintiffs can rest assured that they will be produced to the
extent they discuss Lemuria's provision of hosting services to Hotfile.
I am not going to respond further here to the inaccuracies in your e-mail, such as your
statement that I have acted "without any cooperative effort," which you know to be
untrue. I respectfully submit that such statements, as well as name-calling ("it is clear
that Lemuria is stonewalling"), serve no purpose.
Regards,
ANDY

N. Andrew Leibnitz
Attorney at Law

Farella Braun + Martel LLP
RUSS BUILDING

235

MONTGOMERY STREET
SAN FRANCISCO / CA 94104

6/20/2011

Message

Page 5 of 21

T 415.954.4400
D 415.954.4932
F 415.954.4480

www.fbm.com
Original Message
From: Pozza, Duane [nnailto:[e-mail]]
Sent: Monday, June 06, 2011 8:59 PM
To: Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to
Lemuria
Andy, you've continued to ignore my repeated requests for a final meet and
confer on Lemuria's subpoena and my request for a production date. I
requested a further conference and a production timeline on May 23, May 25,
and June 1. At this point, it is clear that Lemuria is stonewalling, even on
producing documents that you continue to claim will address our concerns
with some of the objections. We requested, and you agreed to, a 30-day
extension to bring a motion to compel so that we could try to deal with some
of these issues. But we are nearing the deadline for a motion again without
any cooperative effort on your part. Given this stonewalling, we cannot agree
to postpone moving on any of our requests to Lemuria. I have outlined
plaintiffs' current positions below. I'm,available on Wednesday afternoon at
3:30 pm and later that afternoon for a meet and confer. Please let me know
your availability.
For those document requests that Lemuria has sought to narrow to limit to
documents related to the provision of hosting services to Hotfile, including
Request 1(a), (b), and (d), 2(d), 7, and 8: As documented in my numerous
emails, our understanding was that you would confirm whether Lemuria
provides any services other than hosting services to Hotfile, and thus whether
you were withholding documents on that ground. But in any event, it is clear
from your subsequent responses that you will not do so. We have explained in
our complaint and on our previous call that Lemuria's relationship with Hotfile
is relevant because, among other reasons, we have alleged that Lemuria is
being used to facilitate Hotfile's infringing activities. Given the close
connection between Lemuria and Hotfile, any services that Lemuria provided
to Hotfile would be relevant. This objection cannot be narrowed if you are
unwilling to identify whether there are even other services that Lemuria
provides.
For Request 2(a) and 2(b), merely saying that documents will answer our
questions and that the debate is "theoretical" does not explain why you
believe there is no issue. To be clear, given the delay in producing documents,
we cannot wait for a production to determine whether we are somehow
satisfied with the limited set of documents sufficient to show ownership and
management of Lemuria. Again, we have explained the relevance of the
relationship between Hotfile and Lemuria (which does not depend on Lemuria
being an alter ego for Hotfile), and we are entitled to all responsive documents

6/20/2011

Message

Page 6 of 21

here. If you would like to exclude counsel from the definition of an "agent" for
purposes of this response, that's fine.
For Request 2(e) and 11, we are at an impasse on obtaining all documents on
financial arrangements, revenue sharing, and accountings between Lemuria
and any Hotfile Entity, the relevance of which we have discussed. As I stated, I
do not believe your response to 2(e) is clear on what you are producing,
though your May 10 letter states you are only producing documents specified
in response to Request No. 11. Let me know if I have misunderstood.
For Request No. 4, we have explained its relevance and the parties are at an
impasse.
Regarding Request No. 5, our understanding from the meet and confers with
defendants is that defendants are not producing these documents as they
relate to Lemuria. Therefore we cannot "table" this request and, as I have
noted, we are entitled to obtain these documents from Lemuria.
On Requests No. 6 and 9, as I noted, our understanding was that Lemuria
would produce corporate documents and board meeting records if related to
hosting services provided to Hotfile. You have now indicated that Lemuria is
standing on its original objections and refusing the produce the requested
documents. Again, these documents are probative of whether Lemuria is
being operated in order to facilitate Hotfile's infringement, and should be
produced.
On Request No. 10, the parties are at an impasse.
I recognize that for many of these requests, the parties are already at an
impasse, and I do not mean to re-hash discussions we have already had. But
for some of these, Lemuria's position or other circumstances have shifted in
the period since our call on the subpoena. I continue to think that discussing
these requests would be productive before plaintiffs need to bring a motion to
compel. If you disagree, let me know; otherwise please confirm when you are
available. And please let me know the production date — which should be
soon, in light of defendants' request for an early summary judgment motion —
so that we can avoid having to move to compel on that issue as well.
Thanks,
Duane

From: Pozza, Duane
Sent: Wednesday, June 01, 2011 6:54 PM
To: [e-mail]
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to
Lemuria
Andy, you are continuing to fail to respond to my questions about what
documents are being withheld. In two places in my email below, I've asked
whether you are following up on certain points to determine whether

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Message

documents are being withheld and there is an actual dispute — whether
Lemuria provides services other than hosting services and whether there are
overlapping employees. I take it from your response that you are no longer
planning to follow up on these points.
On both Monday and Wednesday of last week, I suggested that we set up a
call to discuss the remaining objections and requested a document production
date. You have not responded to either. Therefore, to be clear, I am
requesting one more meet-and-confer to attempt to resolve or narrow the
remaining issues raised by the subpoena, before we need to move to compel.
And, in any event, Lemuria needs to provide an anticipated production date for
this process to move forward, in advance of our meet-and-confer. Please let
me know on both counts.
-Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Friday, May 27, 2011 7:46 PM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al. -- subpoena to
Lemuria
Duane:
I write to respond to your bullet points below.
First, you request confirmation that Lemuria is not withholding documents based
on the statement that it will provide documents "relating to . . . provision of
hosting services to Hotfile." I do not understand how any provision of services
other than hosting services could possibly be relevant. Is Hotfile's internet file
hosting not the subject matter of this lawsuit?
Second, you request documents regarding overlapping officers, directors,
employees, or agents of Hotfile and Lemuria. Lemuria has offered to produce
documents sufficient to show its ownership and management. I'm unclear on
why Plaintiffs require more. As we discussed a few hours ago in the context of
Hotfile, Plaintiffs have studiously avoided any allegation of "alter ego" or "veil
piercing" as between Hotfile and any other entity. (If you can identify any
allegations in the Complaint in which Plaintiffs allege veil piercing, please let me
know.) Accordingly, I don't see the relevance of this line of inquiry. Moreover, I
should also note that I might be considered an "agent" of Lemuria, insofar as I
act for Lemuria in this litigation. Please understand that Lemuria is not going to
produce or log documents evidencing my legal work for Lemuria in response to
Requests 2(a) or (b). In any event, I believe Lumeria's document production
and ongoing discovery will answer your questions, making this debate
theoretical at best.
In response to your third bullet point, I believe Lemuria's articulation of the
documents it will produce in response to Plaintiffs' demands is clear. I don't
suspect that we need to rehash our repeated discussions of financial
documents or the impropriety of extensive discovery from nonparties.
Your fourth bullet point relates to Demand No. 5. In our meet-and-confer
discussion, you stated that you were tabling this request. Subsequently, you
have conferred with Hotfile about its document responses and its position as to
Hotfile Corp. versus Hotfile Ltd. Lemuria's position on this request has not

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Message

changed.
Regarding your fifth bullet point, I will confer with my client as to whether any
Board minutes specifically discuss provision of hosting services to Hotfile. I do
not recall offering to produce "other corporate documents" -- I'm not particularly
sure what that means, or what else you have in mind other than Board
minutes -- "related to Lemuria's hosting services." Such a formulation could
arguably cover most or indeed all of Lemuria's documents. Lemuria's
agreement to produce remained subject to the contours set forth in its
responses and objections.
Sixth, Lemuria has not agreed to produce documents other than those set forth
in its responses and objections. I'm not even sure what more you seek that is
not being provided.
Regards,
ANDY

N. Andrew Leibnitz
Attorney at Law

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4932
F 415.954.4480
www.fbm.com

Original Message

From:

Pozza, Duane [mailto:[e-mail]]
Sent: Tuesday, May 17, 2011 10:52 AM
To: Leibnitz, Andrew (21) x4932; Thompson, Rod (27) x4445
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al.
Andy, this follows up on your letter regarding the response to
Lemuria's subpoena. Rod, I am copying you here as I know Andy
is not in the office (but appears to be on email), and I am
requesting a response today on the issues below, including
extension of the 30-day period that applies to discovery motions.

As noted below and in our correspondence, there are various
disputes that have arisen out of the meet and confer between
plaintiffs and Lemuria. That conference was itself delayed by
your schedule: we requested a meet and confer on April 21,
provided an outline of issues on April 26, followed up on April 28,
May 3, and May 5, but were unable to set a meet and confer with
your schedule until May 9, well over two weeks after our first

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Message

request. But, given that Lemuria's objections were served on
April 18, and we have not heard from you on the stipulation to
extend the 30-day period for bringing discovery motions, we
need to be clear on whether Lemuria will take the position that
the 30-day period applies and runs from April 18. Accordingly,
please advise as soon as possible today whether (1) the
stipulation on extending the 30-day period is acceptable and can
be entered, and (2) if not, whether your contention is that the
30-day period runs from April 18 or from the time Lemuria was
able to meet and confer. If we cannot reach agreement on that,
we will need to bring a motion to compel on the outstanding
issues shortly.
The points below respond to open issues raised by Andy's letter,
and I have not re-hashed points we have already documented:
•

•

6/20/2011

On the issue of Lemuria's objection, in response to
certain requests, to producing documents limited to
those "relating to Lemuria's provision of hosting services
to Hotfile," we need to be clear on whether you Lemuria
is in fact withholding documents based on this objection.
We strongly disagree with any such objection, as it seems
designed to permit withholding of documents based on
some unduly narrow understanding of what is related to
a hosting service (including other services that Lemuria
has provided). However, after discussing this objection,
our understanding was and remains that you would alert
us to any documents actually being withheld on this
basis. In your letter you state that you could not identify
any Lemuria documents withheld on that ground "on our
phone call" and you provide a hypothetical example of a
document that you would not consider relevant. But I
assume you have been able to follow up with Lemuria in
the week since the call, and can clarify whether, in fact,
Lemuria provides any service to Hotfile other than what
is considers to be "hosting" and whether it is withholding
any responsive documents (including communications
with Hotfile) on the basis that they do not relate to the
hosting service. We do not have an interest in bringing a
hypothetical dispute to the court — if documents are not
actually being withheld — but Lemuria is going to be
evasive about withholding documents we will have no
choice.
Regarding Request No. 2(a) and (b), as I noted in my
email, my understanding you were checking to see if
there were documents related to overlapping officers,
directors, employees, or agents, so we could determine
whether documents are being withheld. Please confirm.

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Message

•

Regarding Request No. 2(e), Lemuria's limitation on its
response is not stated in its objections. Lemuria's
response to 2(e) is covered by the general response in
No. 2 that Lemuria will produce documents related to
Lemuria's provision of hosting services. There is no
limitation in your objections that the production will be
limited to those documents produced in response to
Request No. 11. Are you amending your response? As
for the substance of your objection, as you are aware,
defendants are objecting to producing similar responsive
documents in response to Request No. 32. The
information is relevant to the allegations in the complaint
regarding the relationship between Hotfile and Lemuria
(as we have discussed) and we are certainly entitled to
seek it from Lemuria.

•

Regarding Request No. 5, as I noted, we need to confer
with defendants to confirm that the requested
documents from Lemuria are being produced by
defendants, given its objections to the definition of
"Hotfile Entity." Given that you represent the defendants
as well, please confirm that the information will be
produced. Otherwise, we are entitled to seek to obtain
these documents from Lemuria.

•

Regarding Requests Nos. 6 and 9, as I noted in my email,
our understanding of your position on the call was that
Lemuria would at least produce Board minutes and other
corporate documents if related to Lemuria's hosting
services. This is not documented in your letter, however,
so please clarify whether Lemuria's response has
changed.

•

Regarding Request No. 11 (erroneously labeled 12 in
your letter), we believe we are entitled to a full response,
as we have stated.

Finally, when can we expect a production, now that we have a
stipulated protective order under which the parties are producing
documents? There is no reason why the same agreement to •
proceed to produce documents under the protective order
should not apply equally to third party represented by the
parties' counsel.
Thanks,
Duane

From: [e-mail] [nnailto:[e-mail]]
Sent: Monday, May 16, 2011 5:10 PM

6/20/2011

Page 11 of 21

Message

To: Pozza, Duane
Cc: Yeh, Jennifer V.
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et al.
Duane:
Please see the attached correspondence regarding Plaintiffs'
subpoena to Lemuria.
Regards,
ANDY

N. Andrew Leibnitz
Attorney at Law

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4932

F 415.954.4480
www.fbm.com
Original Message
From: Pozza, Duane [mailto:DPozza@jennercom]
Sent: Thursday, May 12, 2011 3:11 PM
To: Leibnitz, Andrew (21) x4932
Cc: Yeh, Jennifer V.
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et
al.
Andy, I'm following up on our May 9 meet and confer
regarding the Lemuria subpoena. Below is a summary of
our understanding of Lemuria's positions and the actions
you are taking to follow up with Lemuria, in anticipation of
the actual document production. Please let me know if
we're not clear on any of the following points.
As a general matter, you have confirmed that, to the
extent that Lemuria has responded that it will produce
non-privileged documents relating to the provision of
hosting services to Defendants (see, e.g., Response to
Requests No. 1, 2, and 11), it is your understanding that
Lemuria only provides hosting services to Hotfile. In other
words, Lemuria is not attempting to exclude from
production any category of documents relating to other
services provided by Lemuria to Hotfile, and to the extent
that Lemuria does provide non-hosting services to Hotfile,

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Lemuria will either produce such documents or alert
Plaintiffs to the fact of any withholding of such
documents. Please let us know Lemuria is in fact
withholding documents on this basis.

Request for Production No. 1:
•

•

With regard to 1(e), Lemuria has responded that it
will only produce those documents relating to selfidentified Hotfile users. During the meet and
confer, you have clarified that your definition is
not so limited, and that Lemuria will produce any
documents from users where the communication
can be determined to be related to Hotfile.
You clarified that, at this time, there is no current
dispute regarding the Electronic Communications
Privacy Act, 18 U.S.C. Section 2510 et seq. or the
Stored Communications Act, 18 U.S.C. section
2701 et seq., and Lemuria does not anticipate
withholding any documents on these bases.

Request for Production No. 2:
•

•
•

With respect to 2(a) and (b), you stated that it is
your understanding that Anton Titov is the sole
owner and operator of Lemuria, and you are
confirming whether he is the only employee.
Lemuria has stated that it will produce documents
sufficient to show the ownership and identity of
the management of Lemuria. You are inquiring
further into whether there are overlapping
officers, directors, employees or agents between
Lemuria and any Hotfile entity. We continue to
believe that all responsive documents should be
produced here, but please clarify if any documents
are being withheld on the question of overlapping
officers, directors, employees, or agents.
You clarified that you are producing documents in
response to 2(d) and 2(e).
With respect to 2(f), in addition to the production
of Lemuria's articles of incorporation and bylaws,
you are inquiring into whether there are any
communications pertaining to Lemuria's formation
and will inform Plaintiffs of whether such
documents exist.

Request for Production No. 3:
•

6/20/2011

You have represented that Lemuria is not
withholding any non-privileged documents
responsive to Request No. 3, including based on
any objections that would narrow your

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interpretation of this request.
Request for Production No. 4:
•
We have explained the relevance of this request,
but Lemuria has indicated to date that it will not
produce responsive documents.
Request for Production No. 5:
•
Lemuria contends that, with respect to 5(a)-(f),
any such documents responsive to these requests
will be produced by the Defendants in response to
Plaintiffs' First Set of Requests for the Production
of Documents No. 35. However, I would note that
Defendants appear to have narrowed their
response to this request with respect to the
definition of "Hotfile Entity." Thus, we may need
to confer with Lemuria on this issue further, after
further conference with Defendants.
Request for Production Nos. 6 and 9:
•
Lemuria has declined to categorically produce
corporate documents, other than the bylaws and
articles of incorporation, in response to these
requests. Nevertheless, to the extent that any of
these corporate documents are responsive to
Plaintiffs' requests for documents pertaining to
Lemuria's provision of services to the Defendants,
Lemuria intends to produce such documents. For
example, Lemuria intends to produce Lemuria's
corporate meeting minutes if such minutes relate
to the services provided by Lemuria to the
Defendants. We do not believe this is a sufficient
response, but can revisit this issue after seeing
Lemuria's production.
Request for Production Nos. 7 and 8:
•
Although you believe that Titov is the sole owner
and operator of Lemuria, and are checking on
whether he is the only employee, you have agreed
to inquire further into whether Lemuria has any
other employees or agents. Based on that inquiry,
we can determine if any documents are being
withheld. You have agreed to produce Lemuria's
contract with Titov, to the extent such contract
exists.
Request for Production No. 10:
Lemuria has so far refused to produce documents
•
in response to this request. I clarified on the call
that we are not seeking material protected by

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Message

privilege or work product.
Request for Production No. 11:

•

Lemuria has indicated that it will produce
documents sufficient to show payments from any
Hotfile entity to Lemuria. Plaintiffs are entitled to
a complete response, however. We are also
waiting for clarification (as noted above) as to
whether Lemuria provides any services other than
hosting services to any Hotfile entity.

While we did not discuss this, I also note that Lemuria has
a general objection as to the definition of "Hotfile Entity."
However, you have not specifically indicated that you are
withholding documents based on this objection. Based on
our discussion, my understanding is that Lemuria is only
withholding certain documents where specifically noted,
and thus is not withholding documents based on this
objection, but let me know if this is mistaken.
Regards,
Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Friday, May 06, 2011 4:12 PM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile Corp. et
al.
Sounds good. Talk with you then.
ANDY
Original Message
From: Pozza, Duane [mailto:[e-mail]]
Sent: Thursday, May 05, 2011 11:15 AM
To: Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al. v. Hotfile
Corp. et al.
And in the interest of nailing this down, I'll propose
1 Eastern. Let me know if that doesn't work.
Thanks.
-Duane
From: Pozza, Duane
Sent: Thursday, May 05, 2011 2:10 PM
To: [e-mail]
Subject: RE: Disney Enterprises et al. v. Hotfile
Corp. et al.

6/20/2011

Page 15 of 21

Message

I am available at any time on Monday — preferably
early afternoon Eastern.
-Duane
From: [e-mail]
[mailto:[e-mail]]
Sent: Thursday, May 05, 2011 1:41 PM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v. Hotfile
Corp. et al.
Duane:
Thanks for your message. I regret to say that I no
longer have this afternoon available to talk about
Lemuria's subpoena response -- I have a shortturnaround. Court filing deadline of tomorrow. May
we please talk on Monday? I can make myself
available anytime. I will be away from my e-mail for
all or most of today, so apologies in advance if I do
not respond immediately.
Regards,
ANDY
Original Message
From: Pozza, Duane
[mailto:[e-mail]]
Sent: Thursday, May 05, 2011 9:48 AM
To Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al. v.
Hotfile Corp. et al.
Andy, can we speak at 1 Pacific today?
From: [e-mail]
[mailto:[e-mail]]
Sent: Tuesday, May 03, 2011.5:10 PM
To: Pozza, Duane
Subject: RE: Disney Enterprises et al. v.
Hotfile Corp. et al.
Duane:
Are you free Thursday afternoon to discuss
the Lemuria subpoena?
Regards,
ANDY

N. Andrew Leibnitz
Attorney at Law

6/20/2011

Page 16 of 21

Message

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104

T 415.954.4400 '
D 415.954.4932
F 415.954.4480
www.fbm.com
Original Message
From: Pozza, Duane

[mailto: [e-mail]]
Sent: Tuesday, May 03, 2011 12:03
PM
To: Leibnitz, Andrew (21) x4932
Subject: RE: Disney Enterprises et al.
v. Hotfile Corp. et al.
Andy, we should set a time soon to

discuss the Lemuria objections, per my
emails below. Can you let me know
when you are available? Thanks.
-Duane
From: Pozza, Duane
Sent: Thursday, April 28, 2011 5:54

PM
To: [e-mail]
Subject: RE: Disney Enterprises et al.

v. Hotfile Corp. et al.
Andy, I understand that you're
traveling for tomorrow's conference,
but can set a time to discuss these
objections when you return early next
week? Thanks.
-Duane
From: Pozza, Duane
Sent: Tuesday, April 26, 2011 9:03 PM
To: [e-mail]
Cc: Plater, Luke C; Lundy, Rochelle P.
Subject: Re: Disney Enterprises et al.

v. Hotfile Corp. et al.
Andy, I've outlined below the points
on which we request that plaintiffs

6/20/2011

Message

Page 17 of 21

and Lemuria meet and confer. The
following is not meant to be a
comprehensive statement of the
parties' position, as we should discuss
these points in more detail on the
call. Let me know when you can be
available for a call.
First, regarding Requests 4, 5(a)-(f), 9,
and 10, you have provided objections,
stated that Lemuria will not produce
documents and invited a meet-andconfer. We disagree with Lemuria's
objections and agree we should meet
and confer to discuss the bases for
those and see if we can reach an
agreement on producing responsive
documents.
Second, for a number of other
requests, you have indicated that the
document production will be limited
on the basis of certain objections,
which we should discuss.
• On Request 1, we should
discuss any information that
you intend to withhold under
the ECPA and SCA, and the
bases for doing so, as it is not
clear from the objections.
Further, as to (a), (b), and (d),
you have indicated that
Lemuria will produce
documents related solely to
Lemuria's provision of hosting
services, but that limitation is
unreasonably narrow, as other
services that Lemuria provides
to Hotfile would plainly be
relevant, and we should
discuss any objections on
which you are relying to
support your position. We
also object to your unduly
narrow limitation on (e) that
you will produce documents
that relate only to selfidentified Hotfile users, as
Lemuria should produce, at a

6/20/2011

Page 18 of 21

Message

minimum, documents related to
users that Lemuria would have
reason to know are Hotfile
users.
•

•

On Request 3, you have
indicated that no responsive
documents exist, but we
should be clear on whether
you are limiting your search
on the basis of any objections.

•

6/20/2011

On Request 2, it appears that
you are standing on objections
to (d) and (e), and we should
discuss the bases of any such
objection to producing clearly
responsive documents here.
We should also discuss the
basis of your limitation to
producing responsive
documents in response to (a)
and (b) regarding joint officers
and directors and joint
ownership, and your limitation
in response to 2(f) and
Request 6 to producing
responsive production to
articles of incorporation and
bylaws. These are unduly
narrow and unreasonable
given relevance of these
requests to allegations
concerning Hotfile and
Lemuria in the complaint. And
finally, we should be clear as
to whether and on what
grounds you intend to
withhold any responsive
documents here under the
ECPA and SCA.

On Requests 7 and 8, you
have objected and stated that
you will produce only a limited
set of documents in response,
even those these requests
merely seek documents
sufficient to show certain
facts. Again, we disagree with

Page 19 of 21

Message

this narrow limitation given the
relevance of the request and
we should discuss Lemuria's
objections.
•

On Request 11, you have
objected and, similar to your
response to Request 1, limited
the response to documents
related to Lemuria's provision
of hosting services to Hotfile.
We believe that is unduly
narrow, as discussed above,
and we should discuss your
objections.

-Duane

From: [e-mail]
[mailto:[e-mail]]

Sent: Thursday, April 21, 2011 9:09
PM

To: Platzer, Luke C
Cc: Pozza, Duane; Lundy, Rochelle P.
Subject: Re: Disney Enterprises et al.
v. Hotfile Corp. et al.
Luke:
Thanks for your message. Before
scheduling a call, would you please
identify your clients' concerns so that I
may best prepare? I would like any
discussion to be as productive as
possible.
Regards,
Andy

From: Platzer, Luke C
[mailto:[e-mail]]

Sent: Thursday, April 21, 2011 05:48
PM

To: Leibnitz, Andrew (21) x4932
Cc: Pozza, Duane
<[e-mail] >; Lundy,
Rochelle P. <[e-mail] >
Subject: RE: Disney Enterprises et al.
v. Hotfile Corp. et al.
Andy —
We would like to meet and confer

6/20/2011

Page 20 of 21

Message

regarding your objections to the
Lemuria subpoena. Can we perhaps
schedule a call on Monday?
Thanks,
Luke

From: [e-mail]
[mailto:[e-mail]]
Sent: Monday, April 18, 2011 8:29 PM
To: Platzer, Luke C; Pozza, Duane;
Fabrizio, Steven B
Cc: [e-mail]
Subject: RE: Disney Enterprises et al.
v. Hotfile Corp. et al.
Counsel:
Attached please find the response of
Lemuria Communications Inc. to
Plaintiffs' subpoena.
Regards,
ANDY

N. Andrew Leibnitz
Attorney at Law

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
• SAN FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4932

F 415.954.4480
www.fbm.com
Original Message
From: Platzer, Luke C
[nnailto:[e-mail] ]
Sent: Monday, April 04, 2011
3:06 PM
To: Thompson, Rod (27) x4445;
Leibnitz, Andrew (21) x4932;
Schoenberg, Tony (28) x4963;
Gupta, Deepak (22) x4419;
Thamkul, Janel (28) x4467;
Janet Munn
Cc: Fabrizio, Steven B; Pozza,
Duane
Subject: Disney Enterprises et

6/20/2011

Page 21 of 21

Message

al. v. Hotfile Corp. et al.
Counsel:
Please see the attached Rule 45
subpoena directed at Lemuria
Communications, Inc., for which
you have agreed to accept
service per Mr. Thompson's
email of 4:55pm EDT today.
Also, as it has come to our
attention that PayPal, Inc.
prefers to receive service in
Irvine, CA rather than at its
headquarters in San Jose, CA,
please also see a revised
subpoena to be served on
PayPal.
Regards,
Luke

Luke C. Platzer
Jenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
Tel [phone]
Fax [phone]
LPlatzer©jenner.com
www.jenner.com

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6/20/2011