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 B

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-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.
/

HOTFILE CORP.,

Counterclaimant,
v.

WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

COUNTERDEFENDANT WARNER BROS. ENTERTAINMENT INC.'S RULE 30(b)(6)
NOTICE OF DEPOSITION OF COUNTERCLAIMANT HOTFILE CORP.
PLEASE TAKE NOTICE THAT, pursuant to Fed. R. Civ. P. 30(b)(6), Counterdefendant

Warner Bros. Entertainment Inc., by its attorneys, wil take the deposition upon oral examination

of Counterc1aimant Hotfie Corp. ("Counterc1aimant" or "Hotfie") before a certified shorthand
reporter at the offices of Kambourov & Partners, 55 Neofit Rilski S1., 1000 Sofia, Bulgaria,

commencing at 9:00 a.m. on December 6, 2011, or at such other time agreed by counsel, with

respect to the matters set forth below in Schedule A. The deposition will 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 will be recorded stenographically and
by videotape.
Pursuant to Rule 3 O(b)( 6) of the Federal Rules of Civil Procedure, Hotfile shall designate

one or more offcers, directors, managing agents, or other persons who consent to testify on their
behalf, regarding the topics listed on Schedule A.
",'~"",

Dated: November 15,2011

/L)/iL/ t;J /Z(~,

By:

Duane C. Poezza

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 and Counterdefendant
Warner Bros. Entertainment Inc.

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A

SCHEDULE

The following definitions apply to the Deposition Topics listed below:

DEFINITIONS
1. The words "you," "yours," "yourselves," and "Counterclaimants" means Anton

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

attorneys, employees, agents, representatives or other persons authorized to act on behalf of
Hotfile Corp. or Anton Titov; (ii) all of Hotfile Corp.' s affliates, divisions, units, predecessorsin-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

Hotfie Corp., or is under common control with Hotfie Corp.
2. The terms "Hotfile" and "Hotfile Website" mean the website accessible at

ww.hotfile.com and hotfile.com and encompasses all servers, software, and databases operated
as part of the website.
3. 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. "

4. "Date" shall mean the exact date, month and year, if ascertainable or, if not, the
best approximation of

the date (based upon relationship with other events).

5. "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.
6. "Person" shall mean any individual, corporation, proprietorship, partnership, trust,

association or any other entity.

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7. 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.
8. The term "Hotfle user" means any person who has directed his or her Internet

browser to the Hotfile Website or otherwise accessed the Hotfile Website, including any person

who has registered with the Hotfile 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 Hotfle Website's "Affiliate" programs.

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

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

DEPOSITION TOPICS
1. The bases of each factual allegation in Hotfile Corp.' s amended counterclaims

("Counterclaims") against Plaintiff Warner Bros. Entertainment, Inc. ("Warner"), including but
not limited to:
a. Your allegation that Hotfie "relied on Warner's sophistication and experience in

DMCA takedown procedures as well as its representations of its honesty and
integrity in business dealings" (Counterclaims ~ 2) in providing Warner with
access to the SRA;

b. Your allegation that Hotfile has "at all times...attempted to cooperate in good
faith with Warner and the other Studios," (Counterclaims ~ 11);

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c. Your allegation that "(b Jy September 2010, Hotfile began noticing suspicious

conduct associated with the Warner DMCA takedown notices," (Counterclaims
~19);
d. Your allegation that "Warner, Bentkover, and Warner's other agents are well

aware that its technology and techniques produce an unacceptably large number
of 'false positives,'" (Counterclaims ~ 32);
e. Your allegation that Warner "continues to make the same types of erroneous

deletions on Hotfile" as those listed in Exhibit A to your Counterclaims and
attached to your April

5, 2011 30(b)(6) notice of

Warner, (Counterclaims ~ 33);

f. Your allegation that "Warner knew its methods for using the SRA were resulting

in a large number of

wrongful takedowns," (Counterclaims ~ 34);

g. Your allegation that Hotfile has "been injured by Warner's wrongful conduct" by
"interference with valuable relationships with customers whose files were
wrongfully deleted by Warner," (Counterclaims ~ 38);
h. Your allegation that Hotfile has "been injured by Warner's wrongful conduct" by

"lost income from customers who terminated premium accounts," (Counterclaims
~ 38);

1. Your allegation that Hotfile has "been injured by Warner's wrongful conduct" by

"damage to its reputation and good wil," (Counterclaims ~ 38);
J. Your allegation that Hotfile has "been injured by Warner's wrongful conduct" by

"costs incurred in investigations and attorneys fees to uncover the full magnitude
of

Warner's DMCA abuse;" (Counterclaims ~ 38).

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2. Warner's use of

Hotfile's Special Rightsholder Account ("SRA") to issue

takedown notices, including any notices you contend were issued wrongfully, and Hotfile's
responses to such notices.
3. Your communications with Warner or any individual that you believed to be

acting on behalf of Warner regarding Warner's takedowns (including by means of the SRA).
4. Users Hotfile has terminated based on (or based in part on) notifications of

infringement (whether by means of

the SRA or otherwise) issued by Warner that you contend

were issued wrongfully.
5. Users that have canceled their accounts or did not upgrade to premium accounts

based on (or based in part on) notifications of

infringement (whether by means of

the SRA or

otherwise) issued by Warner that you contend were issued wrongfully.

the Counterclaims, the bases for your

6. For each URL identified in Exhibits A-D of

claim that Warner "knowingly misrepresent(edJ" its good-faith basis as to the infringing nature
of files Warner requested be removed from Hotfile.

the Counterclaims, the date you first

7. For each URL identified in Exhibits A-D of

came to believe that the URL had been requested for takedown by Warner in error, the
circumstances of your acquiring such awareness, and any notification or information provided to
Warner about each URL.
8. Communications (including complaints, responses, and/or DMCA

counternotifications) between Hotfile and any third party (including Hotfie users, Hotfile
affiliates, and third-party "link" sites) regarding takedown notices (whether by means of

or otherwise) issued by Warner.

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the SRA

9. Hotfile's practices and procedures for generating or allowing users to generate

DMCA counternotifications, including how those practices and procedures have changed over
time.
10. Hotfle's practices and procedures for responding to DMCA counternotifications,

including whether Hotfle retains copies of fies that are subject to a notice so that they can be
restored in the event of a counternotice, and including how Hotfile's practices and procedures for
responding to counternotifications have changed over time.
11. Any harm or injury you claim to have suffered as a result of notifications of
infringement that Hotfile contends were improperly taken down through Warner's use of

the

SRA tool, including but not limited to:
a. damage to your goodwill or reputation due to the disabling or removal of any
Content File you contend was improperly taken down;

b. loss of revenue from any Hotfie user who has terminated his or her premium
account due to the disabling or removal of any Content File you contend was
improperly taken down;
c. damage to your goodwill or reputation, or loss of revenue from any Hotfile user

whose account you terminated for repeat infringement, due to the disabling or
removal of any Content File you contend was improperly taken down; or
d. costs or expenses you have incurred in investigating the disabling or removal of
any Content File you contend was improperly taken down.

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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:

COUNTERDEFENDANT WARNER BROS. ENTERTAINMENT INC.'S NOTICE
OF DEPOSITION OF COUNTERCLAIMANT 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.

I'" ~

'i \1 ,j/'
By: J//L~/ ¡ L 1
Duane C. Pozza )"

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

KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
rthompsonC2fbm.com
N. Andrew Leibnitz
[e-mail]

RASCO

Phone: [phone]

Fax: [phone]

Deepak Gupta

Attorneyfor Defendants Hotfle Corp. and

dguptaC2fbm.com
Janel Thamkul
[e-mail]
235 Montgomery Street

Anton Titov

San Francisco, CA 94104
Phone: [phone]

Attorneysfor Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits

[e-mail]
825 Beacon Street, Suite 20

Newton Centre, MA 02459
Phone: [phone]

Attorneysfor Defendants Hotfile Corp. and
Anton Titov

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