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

Filing 165

Plaintiff's MOTION FOR ONE ADDITIONAL EXAMINATION DAY FOR RULE 30(b)(6) DEPOSITION OF DEFENDANT HOTFILE CORPORATION by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Stetson, Karen)

EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.1 1-20427-WILLIAMS/TURNOFF

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,

Plaintif,
v.

HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
I

HOTFILE CORP.,

Counterclaimant,
v.

WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
I

PLAINTIFFS' RULE 30(b)(6) NOTICE OF DEPOSITION OF DEFENDANT HOTFILE
CORP.
PLEASE TAKE NOTICE THAT, pursuant to Federal Rule of Civil Procedure 30(b)(6),
Plaintiffs Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City

Studios Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment
Inc., by their attorneys, wil take the deposition upon oral examination of Defendant Hotfile
Corp. ("Defendant" or "Hotfile") before a certified shorthand reporter at the offces of

1

Kambourov & Partners, 55 Neofit Rilski S1., 1000 Sofia, Bulgaria, commencing at 9:00 a.m. on

December 7-8, 2011, or at such other time agreed by counsel, pursuant to Fed. R. Civ. P.
3 O(b )( 6), with respect to the matters set forth below in Schedule A. The deposition wil proceed

in accordance with the Federal Rules of Civil Procedure and wil continue from day to day
(Saturdays, Sundays and holidays excluded) until completed. This deposition wil be recorded
stenographically and by videotape.

Pursuant to Rule 30(b)(6) of

the Federal Rules of

Civil Procedure, Hotfile shall designate

one or more officers, directors, managing agents, or other persons who consent to testify on their
behalf, regarding the topics listed on Schedule A.
/~--\ ~i

Dated: November 15,2011

By: L/ /~'/7/~'
Duan~' c.-Pozia

JENNER & BLOCK LLP

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.

Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)

Karen R. Thorland (Pro Hac Vice)

15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403

1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Phone: [phone]
Fax: [phone]

GRAY-ROBINSON, P.A.
Karen L. Stetson (FL Bar No. 742937)
1221 Brickell Avenue
Suite 1600
Miami, FL 33131

Phone: [phone]

Fax: [phone]
Attorneys for Plaintif

2

SCHEDULE

A

DEFINITIONS
The following definitions apply to the Deposition Topics listed below:
1. The words "you," "yours," "yourselves," and "Defendants" means Anton Titov

and Hotfile Corp., and includes (i) any directors, officers, accountants, investigators, attorneys,
Hotfie Corp.

employees, agents, representatives or other persons authorized to act on behalf of

or Anton Titov; (ii) all of

Hot

file Corp.'s affiiates, divisions, units, predecessors-in-interest,

successors-in-interest, subsidiaries, parent corporations, and assigns; (iii) any other person or
entity otherwise subject to Hotfile Corp.'s or Anton Titov's control, who controls Hotfile Corp.,
or is under common control with Hotfile Corp.
2. The terms "Hotfile" and "Hotfie Website" mean the website accessible at

ww.hotfie.com and hotfile.com and encompasses all servers, software, and databases operated
as part of the website.

3. The term "Hotfile Entity" means Hotfile Corp., Hotfile, S.A., and Hotfile, Ltd., as

the Hotfile Website, and

well as any entity that participates in the management or operation of

shall further include principals, executives, officers, directors, employees, agents,
representatives, or shareholders of such entity.
4. The term "Lemuria" means Lemuria Communications Inc. ("Lemuria"), including

any principals, executives, offcers, directors, employees, agents, representatives, or shareholders
of Lemuria, all of Lemuria' s affliates, divisions, units, predecessors-in-interest, successors-in-

interest, subsidiaries, parent corporations, and assigns, and any other person otherwise

understood by you to be subject to Lemuria's control, who controls Lemuria, or is under
common control with Lemuria.

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5. The singular shall include the plural and vice versa; the terms "and" or "or" shall

be both conjunctive and disjunctive; and the term "including" shall mean "including without
limitation. "
ascertainable or, if

6. "Date" shall mean the exact date, month and year, if

best approximation of

not, the

the date (based upon relationship with other events).
the term "documents or

7. The word "document" shall have the meaning of

Civil Procedure 34(a)(l)(A).

electronically stored information" in Federal Rule of

8. "Agent" shall mean any agent, employee, officer, director, attorney, independent

contractor or any other person acting at the direction of or on behalf of another.
9. "Person" shall mean any individual, corporation, proprietorship, partnership, trust,
association or any other entity.

10. The words "pertain to" or "pertaining to" mean relates to, refers to, regarding,

contains, concerns, describes, embodies, mentions, constitutes, constituting, supports,
corroborates, demonstrates, proves, evidences, shows, refutes, disputes, rebuts, controverts or
contradicts.

1 1. The term "Hotfie user" means any person who has directed his or her Internet
browser to the Hotfle Website or otherwise accessed the Hotfile Website, including any person

who has registered with the Hotfie website, any person who has at any time opened a
"Premium" account with the Hotfile website, and any person who has at any time been a
participant in any of

the Hotfie Website's "Affiliate" programs.

12. The term "Content File" means any electronic fie uploaded to, stored on and/or

downloaded from the Hotfile Website by any Hotfile user at any time.

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13. The term "Affiliate programs" means all offers, programs or practices whereby

Hotfile users receive compensation from any Defendant or Hotfile Entity, including the

"Affliate" program for uploading users and the "Referral" programs "for site owners" and

"Refer a friend" as described at http://ww.hotfile.com/affliate.htm1.
14. The term "Content Reference Data" means any electronic data pertaining to the

Content Files (apart from the Content Files themselves) received by Hotfile servers or otherwise

created, maintained, or used by Hotfile or Defendants. "Content Reference Data" shall include:

a. the Hotfile URL associated with each such file;

b. any unique Hotfle-assigned identifier associated such each such fie;
c. any identifiers of the uploading Hotfle user associated with each such fie

including IP address, username, and Hotfile user identification number;
d. the Hotfile user supplied filename of each such fie;
e. the size in bytes of each such file;

f. the date and time each such file was uploaded to Hotfile;

g. the location and/or IP address from which each such file was uploaded to Hotfile;

h. the number of

times each such file has been downloaded from Hotfile;

1. the location and/or IP address from which each such fie was downloaded from
Hotfile;
J. the dates and time of each download of each such fie from Hotfle;
k. whether each such file was copied using Hotfie's feature by which an uploading

user may create additional copies within their account, and if so, the Hotfile URL
and any unique identifier associated with each resulting copy;
1. the "status" of each such file on the Hotfile Website, including:

1. whether the file remains active;
11. whether the file has been blocked from user access, or from Hotfile's
servers;

5

111. for files that do not remain active, the reason why the fie no longer
remains active, including
1. whether the file was the subject of a copyright owner claim or
notice;

2. whether the Hotfle user deleted the file; or
3. whether the fie was blocked, removed, or deleted for inactivity; or

4. whether the file is no longer active for some other reason.
15. The term "User Data" means all electronic data received by Hotfie servers or

otherwise created, maintained, or used by Hotfile or Defendants reflecting information about
Hotfile users, whether registered or unregistered, including any user account or activity records,
any records of

uploads to or downloads from Hotfie by users (including log files), and all
Hotfile's "Affiliate" programs.

records concerning payments made or owed to users under any of

16. The term "Affiliate Data" means all electronic data reflecting information about

the persons or entities to which Hotfle makes payments, directly or indirectly, as part of any of
its "Affiiate" programs, including amounts and dates of payments; the URLs of websites

registered by Hotfie users under Hotfile's referral program for site owners; the amounts of
traffic from such websites; the number of downloads by users arriving from such websites; the
numbers of Hotfile Premium subscriptions resulting from traffic from such websites; formulas,

algorithms, or other methods used to calculate those payments; and any data used to calculate the
amounts of such payments or determine their proper recipients.

DEPOSITION TOPICS
1. All data collected or received by Hotfile, including all Content Reference Data,

User Data, and Affiliate Data, the databases in which that data is stored, and all actions taken to

log any data received by Hotfle.
2. The processes by which users may upload and create copies of fies (including

6

remote and FTP upload of

fies).

3. The processes by which Hotfie makes and stores copies of files, and the file
storage architecture and related software of

the Hotfle Website,

4. The processes by which Hotfile displays information and permits users to manage

their files and by which users receive a link (including a "hotlink") for those files.
5. The processes by which users may create additional copies of previously

uploaded fies and additional

links to those files.

6. The processes by which Hotfile enables or restricts the downloading of Content

Files, including whether and how it restricts download speeds or other access to those fies by
certain users.

7. The processes by which Hotfile enables the downloading of Content Files,

including whether it creates multiple copies of those files in the course of downloading.
8. The processes by which Hotfie monitors any "cheating" in downloading.

9. Any policy, methods, or practices any Defendant, Hotfile, or Hotfle Entity has

ever adopted or considered pertaining to the deletion of files uploaded by users that have not
been downloaded by users within a particular time period (such as 90 days).
10. The Content Files uploaded to or downloaded from Hotfie, including by you or

individuals identified in response to Interrogatory No.1, and your knowledge of

whether any of

those contained infringing content or content alleged to be infringing.
11. Hotfile's, Defendants', or any Hotfile Entity's processes, procedures, or actions

taken to restrict, disable, or remove Content Files for any reason, including notifications of
copyright infringement.

7

12. The circumstances of

your creation and the implementation of

Hotfile's Special

Rightsholder Account ("SRA"), or any other account permitting copyright holders to disable or
remove Content Files, as well as the authorization of its use by copyright owners and their agents

(including Plaintiffs) and identification of any fies removed via any such account.
13. The technical operation of the SRA, including:

a. Whether files noticed through the SRA are deleted immediately or rendered

inaccessible for some period of time prior to deletion;
b. How the SRA responds to URLs that resolve to subpages of

Hotfie instead of

URLs that resolve to specific files, such as "list" pages containing multiple URLs
that resolve to specific files, as referenced by www.hotfile.com/faq.htm1. ("Q.
How can I create list with all files in folder? A. You can do it with our File
Manager - for each your directory you wil find "Get link" option. Click it and
you wil get url of page, containing all your files in this directory.");
c. Any changes to the SRA over time.

14. Any policy, methods, or practices any Defendant, Hotfie, or Hotfile Entity has

ever adopted or considered, or any actions taken, regarding the removal, blocking, or restriction
of any content (including unauthorized or copyrighted content) from the Hotfile Website,
including via use of:
a. Any hash-based (MD5, SHAI or otherwise) technology;

b. Any technology or service based on audio, audiovisual, or video fingerprinting
(e.g. Vobile, Audible Magic, etc.); and

c. Any technology based on filename, filename extension, file type, file size,
internal file metadata, or any combination thereof.
15. The content, design, features and functionalities of the Hotfile Website (including

the Hotfle Tool released in July 2011, Hotfile "list" pages, and the Hotfie "Link Checker"),
including any feature specification, feature requirements definition, or system architecture, and

the Hotfile Website over

any changes made to the content, design, features and functionalities of

time.
8

the Hotfile Website in source code and the

16. Hotfie's implementation of

that code in a repository or repositories containing past versions.

maintenance of

the Hotfile Website (including tables in

17. Hotfile's use of databases in support of

the database and the columns of

those tables).

18. Any consideration, discussion or analysis regarding implementation or use of
functionality permitting users to search for individual Content Files or URLs on the Hotfie

Website, including any reason why the Hotfie Website does not contain such a search
functionality.
19. The uses of the Hotfile Website, including the existence and amount of infringing

or non-infringing uses, the reasons that users are attracted to the Hotfie Website, the
demographic or other characteristics of Hotfile users, and any other information about the
characteristics of Hotfile uses or users gained from sources such as Google Analytics or log data.
20. The sites from which users come to the Hotfie Website, and the nature of

Hotfile's relationship with any of

operators of

those sites (including your communications with any of

the

those sites).

21. Any disciplinary action, or consideration of such action, against a website
referring traffic to Hotfle, or the operator of such a website, for any reason including reasons
pertaining to copyright infringement or claims or notices of copyright infringement.
Hotfile's Affiliate programs, including

22. The design and implementation of each of

the calculation of any payments to Affiliates or to any Hotfile users.
23. All efforts to promote, advertise, or market the Hotfie Website, including

statements on public forums and payments to contractors to promote Hotfie.

24. Any consideration of or steps taken to implement advertising on Hotfie.

9

25. All efforts to attract Hotfile users or potential Hotfile users from other "locker" or

fie storage websites, including Rapidshare and Megaupload.
26. All efforts to attract Hotfie users or potential Hotfile users from other file-sharing

or file-trading services, including BitTorrent, eDonkey, or Limewire.
27. Hotfile's use of

28. The implementation of

payment processors, including PayPal and SegPay.

Hotfie's "Reseller" program.

29. All communications by you or any individual or entity acting on behalf of Hotfile,
you, or any Hotfie Entity with any Hotfie user, including to provide technical or other
assistance to any Hotfile users.
30. All payments to or from any Hotfile users.
31. All classifications of or privileges provided to any Hotfile users or classes of

Hotfile users.

32. Any policy, methods, or practices any Defendant, Hotfie, or Hotfile Entity has

ever adopted or considered pertaining to preventing abuse of the Hotfile system, including any

measures to prevent improper downloads, to prevent the creation of false download traffic, and
to detect or impede bots.
33. Any actions of, efforts by, or the ability of, any Defendant, Hotfle, or any Hotfile

Entity to terminate, block, or limit the access of any subscriber or user from the Hotfie Website,
for any reason; any consideration of such actions, efforts, or ability; the explanation for any
suspension, termination, or limitation on access of any user for any reason, including copyright
infringement; and the circumstances surrounding the reinstatement of any user.

10

34. Any policies and practices by Defendant, Hotfile, or any Hotfile Entity to

implement a policy to terminate, suspend or restrict any Hotfie user on the basis of copyright
infringement.
35. For every user conceivably suspended, restricted, or terminated for copyright

infringement, the facts and circumstances surrounding each termination, including, but not

limited to, the users associated with the following Hotfie user IDs:
1.
11.
111.

iv.
v.
Vi.

Vli.
VlI1.

iX.

x.
XI.

XII.

XlII.
XiV.

xv.
XVI.

XVli.

xvii.
XiX.

xx.
XXI.

XXli.

xxii.
XXiV.

xxv.
XXVI.

XXVII.

xxvii.
XXiX.

xxx.
XXXI.

XXXII.

32764
138846
34812
397615
87196
508230
341959
911925
126425
1393891
296013
725726
1075847
166771
316712
934520
1211307
98192
393329
1101456
152289
1295588
346223
1023354
680855
21807
218076
112212
597652
412187
105689
96987
11

xxxii. 235052
xxxiv. 295677
xxxv. 1521906
XXXVi. 404651
XXXVli. 264034
XXXVlI1. 1864493
XXXiX. 2102138
xL 286330
xli. 17411
xlii. 78460
xliii. 1633993
xliv. 308101
xlv. 4061566
xlvi. 4108532
xlvii. 114447

36. All communications with any copyright owners regarding infringement on the

Hotfile Website.

37. Any actions, policies or practices taken by any Defendant, Hotfile, or any Hotfile
the Digital Millennium Copyright Act, 17 U.S.c.

Entity to comply with the requirements of

§ 512 ("DMCA"), including designation of an individual to receive copyright notices on the
Hotfile website and the Copyright Office.

38. Any actions, policies or practices taken by any Defendant, Hotfle, or any Hotfle
Entity to respond to take

down notices or other communications from copyright owners sent

pursuant to the DMCA and any changes to those actions, policies or practices over time.
39. All explanations of

Hotfile's DMCA policies on the Hotfile Website or to any

user, including communications with users regarding takedown notices and any warnings sent to
users related to the receipt of take

down notices.

12

users who

40. The processes by which Hotfile identifies and maintains records of

have uploaded content identified in DMCA takedown notices, including any related databases,
tables, software, or system architecture.
41. All actions taken by the individuals or entities identified in response to Plaintiffs'

Defendants, Hotfile, or any Hotfile Entity,

Interrogatory No.1, on behalf of or at the direction of

including the scope of responsibilities or work of such individuals or entities, the nature of
Defendants' or Hotfile's relationship with those individuals or entities and the involvement of
those individuals or entities in the operation of

the Hotfie Website.

42. Hotfile's relationship and communications with its internet service providers,

including Webazilla, Limelight Networks, and Lemuria, and the circumstances surrounding the
formation of Lemuria and the work it performs on behalf of Hotfile.
43. The shareholders, investors, and potential investors in the Hotfile Website, and

the circumstances surrounding the formation and operation of Hotfile Corp. and any Hotfie

Entity, including the relationship and payments exchanged between Hotfie Corp. and any
Hotfile Entity.
44. The revenues received by Defendants or any Hotfie Entity, including profits from

the operation of Hotfie and the distribution of those revenues.
45. Hotfile's adherence to corporate formalities, including but not limited to:

a. the incorporation of Hotfile Corp. and any Hotfile Entity;

b. Hotfile Corp.' s and any Hotfile Entity's appointment of officers and directors and

their involvement in the operation and management of Hotfie Corp. and any
Hotfle Entity;

13

c. the maintenance of bank accounts and banking records by Hotfile Corp. and by

any Hotfile Entity;
d. payments or distributions to any shareholders of Hotfle Corp. or any Hotfile

Entity.
46. The factual bases for each of

your affirmative defenses.

47. All efforts to preserve any data collected or received by Hotfile, or any documents

or data requested by Plaintiffs in the litigation, including all circumstances regarding the
preservation and deletion of download log data from February 201 1.
48. All efforts to search for and collect responsive documents, data, and information

in response to Plaintiffs' discovery requests served in this litigation, including identification of
the email addresses, instant messaging handles, computers, and document custodians searched,

whether any individuals who provided services or performed work on behalf of Hotfle have
email addresses, instant messaging handles or computers that were not searched, and
identification of any database queries used to extract responsive data.
49. The authenticity of any documents or data produced by Defendants during the

course of discovery in this litigation.

Plaintiffs' Interrogatories, including but

50. The bases for your responses to each of

not limited to Interrogatories Nos. 1,2,4,6,9,10,12, and 13.

14

CERTIFICATE OF SERVICE
November, 2011, I served the following

I HEREBY CERTIFY that on this 15th Day of

documents on all counsel of record on the attached service list via their email address( es) as set

forth on the attached service list pursuant to the parties' service agreement:

PLAINTIFFS' RULE 30(b)(6) NOTICE OF DEPOSITION OF DEFENDANT
HOTFILE CORP.

I further certify that I am admitted pro hac vice to the United States Court for the Southern
District of Florida and certify that this certificate of Service was executed on this date at
Washington, D.C.

1) ~,o
By: /( /~ ¡ l~¡

Duane C. Poib

15

SERVICE LIST
Disney Enterprises, Inc., et aL. v. Hotfle Corp. et aL.
CASE NO. ll-CIV-20427-JORDAN

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
tschoenbergrmfbm. com
Roderick M. Thompson
iihompsonrmfbm.com
N. Andrew Leibnitz
[e-mail]

KLOCK
Janet T. Munn
RASCO

j m unnrmrascokl ock. com

283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]

Fax: [phone]

Deepak Gupta

Attorney for Defendants Hotfle Corp. and
Anton Titov

[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

Attorneysfor Defendants Hotfle 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 Hotfle Corp. and
Anton Titov

16