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

Filing 171

MEMORANDUM of Law re 165 Plaintiff's MOTION FOR ONE ADDITIONAL EXAMINATION DAY FOR RULE 30(b)(6) DEPOSITION OF DEFENDANT HOTFILE CORPORATION of Defendants Hotfile Corporation and Anton Titov In Opposition to Plaintiffs' Motion to Depose Anton Titov Individually and as Hotfile's Rule 30(b)(6) Witness For Over Four Days and Defendants' Cross-Motion for Protective Order Limiting the Depositions of Hotfile Witnesses Including Mr. Titov by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit B)(Munn, Janet)

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

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.

/

MEMORANDUM OF LAW OF DEFENDANTS HOTFILE
CORPORATION AND ANTON TITOV IN OPPOSITION TO
PLAINTIFFS’ MOTION TO DEPOSE ANTON TITOV
INDIVIDUALLY AND AS HOTFILE’S RULE 30(b)(6)
WITNESS FOR OVER FOUR DAYS AND DEFENDANTS’
CROSS-MOTION FOR PROTECTIVE ORDER LIMITING THE
DEPOSITIONS OF HOTFILE WITNESSES INCLUDING MR. TITOV

CASE NO. 11-20427-WILLIAMS/TITOV

I.

INTRODUCTION
Plaintiffs’ Motion which Plaintiffs misleadingly entitle their Motion as a request “For

One Additional Examination Day For The Rule 30(b)(6) Deposition Of Defendant Hotfile
Corporation” rather than “For Leave To Depose Hotfile Through Anton Titov For Three Days
And Separately Depose Mr. Titov For One Additional Day.” It is only through reading
Plaintiffs’ Proposed Order that the extent of their unreasonable demand to depose Mr. Titov for
four days becomes clear.
No legitimate reason exists to interrogate Hotfile and Mr. Titov for longer than the two
days that Hotfile has already offered (in addition to the two-hour videoconference deposition
Plaintiffs have already taken of Mr. Titov pursuant to Rule 30(b)(6)). Mr. Titov, like any other
deponent “is entitled to a presumption that his or her testimony will last no more than seven
hours even if testifying both individually and as a corporate designee under Rule 30(b)(6).” San
Francisco Bay Area Rapid Transit District v. Spencer, No. C-04-04632, 2006 WL 2734289 at *1
(N.D. Cal. Sept. 25, 2006).1 Hotfile consists of three shareholders and three consultants. Hotfile
therefore offered to treat every minute of Mr. Titov’s upcoming two-day deposition as both
testimony of Hotfile under Rule 30(b)(6) and individual testimony – providing Plaintiffs with
twice the presumptive duration of Hotfile’s deposition under the Rules even if one excludes the
two-hour 30(b)(6) deposition that Mr. Titov completed on November 17, 2011. This is
reasonable. In contrast, exactly none of Plaintiffs’ cited cases authorize the deposition of one
person for four days on individual and 30(b)(6) grounds under the Federal Rules. As stated in
Plaintiffs’ own authority, “the solution to the problem lies in requiring [the interrogating party]
1

This does not include cases where, after an individual’s deposition, a party attempts to
retroactively identify that witness as its corporate designee under Rule 30(b)(6), in which case a
second deposition day is warranted. DHL Express (USA), Inc. v. Express Save Industries, Inc.,
No. 09-60276-CIV, 2009 WL 3418148 at*3 (S.D. Fla. Oct. 19, 2009).
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to make efficient use of its time.” Canal Barge Co. v. Commonwealth Edison Co., No. 98-C0509, 2001 WL 817853 at *4 (N.D. Ill. July 19, 2001).
Rather than grant four days of deposition of Anton Titov individually and as Hotfile’s
corporate designee, the Court should issue a protective order limiting Plaintiffs to two and onethird days of deposition with Anton Titov and one and one-half days of deposition of each of
Hotfile’s other witnesses. (The parties have jointly agreed to submit to Hotfile’s request for
protective order to the Court as part of the instant briefing in hopes of resolving the matter before
the parties leave for Bulgaria on December 2, 2011, if the Court is inclined to hear the request.)
Hotfile has proposed the following schedule for weeks:
Deponent

Dates

Anton Titov

Nov. 17 (one-third day), Dec. 5, Dec. 6

[Hotfile Shareholder 1]2

Dec. 7, Dec. 8 (half-day)

[Hotfile Shareholder 2]

Dec. 8 (half-day), Dec. 9

This amounts to more than five seven-hour days of deposition for three witnesses. Apart from
Plaintiffs’ desire to grind Hotfile into submission through litigation, no reason exists to subject
Hotfile’s witnesses to additional interrogation. Moreover, to expedite deposition proceedings,
Plaintiffs should immediately produce their existing English translations of Bulgarian documents
pursuant to Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 440 (E.D.N.Y.
2011) (commanding production and rejecting work product protection for existing translations or
summaries of documents produced in litigation). For reasons set forth in full below, the Court
should deny Plaintiffs’ motion and grant Defendants’ Cross-Motion for Protective Order
Limiting the Depositions of Hotfile Witnesses Including Mr. Titov.
2

The identity of Hotfile’s two other shareholders have not yet been disclosed in the public
record.
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CASE NO. 11-20427-WILLIAMS/TITOV

II.

FACTUAL BACKGROUND
Hotfile began asking Plaintiffs for their proposed notice of deposition of Hotfile pursuant

to Rule 30(b)(6) at least as early as October 13, 2011. See Leibnitz Decl. ¶ 2.3 Following
additional requests by phone and e-mail, Plaintiffs promised on October 19, 2011 to “get
30(b)(6) topics to [Hotfile] in the near future.” Id.
On October 21, 2011, Plaintiffs’ counsel stated that Plaintiffs were entitled to two days of
deposition from Anton Titov absent translation, which would entitle Plaintiffs to two additional
days (or four days in total). See E-mail from Fabrizio to Thompson of 10/21/11 (Leibnitz Decl.,
Ex. 1) (“Since we will be depositing [sic] Titov in his individual capacity . . . and as the
corporate representative of Hotfile, the rules provide that we are presumptively entitled to two
full days of testimony. . . . The translation process more than doubles the time required for each
question. I would like defendants’ agreement that we can examine Titov over four days.”)
On October 26, 2011, Hotfile informed Plaintiffs that Anton Titov would conduct his
deposition in English, eliminating any need for more than two days of deposition of Mr. Titov
pursuant to Plaintiffs’ prior statements. See E-mail from Thompson to Fabrizio of 10/26/11
(Leibnitz Decl., Ex. 2).
On November 2, 2011, Plaintiffs noticed a videoconference deposition of Hotfile on
electronically-stored information (ESI) issues to occur only one week later, on November 9,
2011. Leibnitz Decl., Ex. 3.
On Friday, November 4, 2011, Hotfile again requested Plaintiffs’ notice of deposition of
Hotfile pursuant to Rule 30(b)(6). Leibnitz Decl. ¶ 3. In response, Plaintiffs immediately

3

The Declaration Of Andrew Leibnitz Leibnitz In Support Of Hotfile Corporation’s Opposition
To Plaintiffs’ Motion To Depose Anton Titov Individually And As Hotfile’s Rule 30(b)(6)
Witness For Over Four Days (“Leibnitz Decl”) is attached hereto as Exhibit A.
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CASE NO. 11-20427-WILLIAMS/TITOV

promised to move the following Monday for leave to depose Mr. Titov for four days, even while
refusing to provide any notice of the 30(b)(6) topics to which he was expected to speak. See Email from Fabrizio to Leibnitz of 11/4/11 (Leibnitz Decl., Ex.4). Plaintiffs made this threat even
though the justification for expanding the deposition from two days to four – i.e., the need for
translation – had been eliminated. When the parties spoke that day, Hotfile requested
translations of Bulgarian documents to be used in deposition so as to expedite proceedings, and
Plaintiffs refused.
On November 14, 2011, Hotfile asked Plaintiffs for any support for the proposition that a
Plaintiff defending a compulsory counterclaim (e.g., Warner) has the right to depose its
adversary for a separate, additional day. Leibnitz Decl. ¶ 4. Plaintiffs never responded. Id.
Plaintiffs finally served their notices of deposition pursuant to Rule 30(b)(6) on
November 15, 2011. See Mot., Exs. A-B. Despite the fact that Hotfile’s files number more than
100 million, Plaintiffs demanded a witness to speak about all of these files (topic 10). Despite
the fact that Hotfile has produced 1,114,385 documents in this case comprising in substantial part
communications with users, Plaintiffs demanded a witness to speak about all communications
with users (topic 29) and the authenticity of all 1,114,385 documents produced (topic 49). In
total, Plaintiffs identified fifty topics for deposition, including topics such as “[all] factual bases
for each of your [twelve] affimative defenses” (topic 46). Plaintiff Warner separately noticed a
day of deposition on top of the two days of deposition noticed by Plaintiffs jointly, identifying
eleven additional topics for deposition. Id.
On November 16, 2011, Hotfile proposed deposition of its witnesses, both individually
and pursuant to Rule 30(b)(6), with Anton Titov testifying on November 17 and December 5-6,
Hotfile Shareholder 1 testifying for no more than 10 ½ hours on December 7-8, and Hotfile

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CASE NO. 11-20427-WILLIAMS/TITOV

Shareholder 2 testifying for no more than 10 ½ hours on December 8-9. E-mail from Thompson
to Fabrizio of 11/16/11 (Leibnitz Decl., Ex. 5).
Later that day, Plaintiffs filed this Motion. Filing the Motion nearly two weeks after
promising to seek judicial relief, Plaintiffs nonetheless requested that Hotfile serve its opposition
papers within six days. Mot. at 9.
The day after filing this Motion – i.e., November 17, 2011 – Plaintiffs conducted a twohour deposition of Anton Titov pursuant to Rule 30(b)(6). The proceedings were conducted
exclusively in English.
III.

LEGAL STANDARD
“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7

hours.” Fed. R. Civ. P. 30(d)(1). “Each deponent is entitled to a presumption that his or her
testimony will last no more than seven hours even if testifying both individually and as a
corporate designee under Rule 30(b)(6).” San Francisco Bay Area Rapid Transit District v.
Spencer, No. C-04-04632, 2006 WL 2734289 at *1 (N.D. Cal. Sept. 25, 2006). The seven-hour
limit “was carefully chosen and extensions of that limit should be the exception, not the rule.”
Roberson v. Bair, 242 F.R.D. 130, 138 (D. D.C. 2007). The “presumptive” seven-hour limitation
was adopted to combat the “undue costs and delays” associated with “overlong depositions.”
Fed. R. Civ. P. 30 advisory committee notes (2000).
IV.

ARGUMENT
A.

None Of The Exemplary Exceptions To The Seven-Hour Rule Contemplated
Under The Federal Rules Apply Here

In promulgating Rule 30(d)(1), the Advisory Committee identified several circumstances
under which extension of the duration of a deposition may be appropriate.

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CASE NO. 11-20427-WILLIAMS/TITOV

[I]f the witness needs an interpreter, that may prolong the
examination. If the examination will cover events occurring over a
long period of time, that may justify allowing additional time. In
cases in which the witness will be questioned about numerous or
lengthy documents, it is often desirable for the interrogating party
to send copies of the documents to the witness sufficiently in
advance of the deposition so that the witness can become familiar
with them. Should the witness nevertheless not read the
documents in advance, thereby prolonging the deposition, a court
could consider that a reason for extending the time limit. If the
examination reveals that documents have been requested but not
produced, that may justify further examination once production has
occurred. In multi-party cases, the need for each party to examine
the witness may warrant additional time, although duplicative
questioning should be avoided and parties with similar interests
should strive to designate one lawyer to question about areas of
common interest. Similarly, should the lawyer for the witness
want to examine the witness, that may require additional time.
Fed. R. Civ. P. 30 advisory committee notes (2000). None of these exceptions applies here.
1.

Mr. Titov Requires No Translation

As proven already in the first two-hour deposition of Hotfile pursuant to Rule 30(b)(6),
Mr. Titov speaks English. Although an interpreter attended the deposition, not a single word of
the Bulgarian language was spoken, either by Mr. Titov or the translator. Indeed, when the
attendees discussed translation on the record at the deposition, Plaintiffs’ counsel rejected the
idea.
THE COURT REPORTER: . . . If we use the interpreter –
MR. FABRIZIO: No.
See Titov 30(b)(6) Dep. at 22:22 - 23 (Leibnitz Decl., Ex. 6). Plaintiffs cannot credibly argue
that translation requires extension of the deposition when they refuse to employ translation.
2.

The Examination Will Not Cover Events Occurring Over A Long
Period Of Time

Hotfile has only existed since February of 2009. Plaintiffs could not examine Hotfile for
events occurring over a long period of time even if they strained every faculty. Unlike Plaintiffs’
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CASE NO. 11-20427-WILLIAMS/TITOV

cited authority, Plaintiffs cannot examine Hotfile for events spanning seven years. Dunkin’
Donuts Inc. v. Mary’s Donuts, Inc., 206 F.R.D. 518, 522 (S.D. Fla. 2002). Moreover, even if
Plaintiffs could examine Hotfile about seven years of activity, Plaintiffs would still only be
entitled to two seven hours days of deposition of Hotfile pursuant to Rule 30(b)(6) – which
Hotfile has already offered. See id. (permitting fourteen hours of deposition regarding seven
years of financial records comprising thousands of pages).
3.

Plaintiffs Refuse To Provide Advance Copies Of Deposition Exhibits
As Contemplated Under The Rules Prior To Seeking Additional
Deposition Time

In promulgating the seven-hour rule, the Advisory Committee contemplated that – before
seeking additional time in a case involving numerous documents – the interrogating party would
provide proposed exhibits to the witness in advance of the deposition, such that the interrogating
party would then be entitled to additional deposition time if the witness refused to study those
documents prior to deposition. Fed. R. Civ. P. 30 advisory committee notes (2000). Here,
despite repeated requests from Hotfile, Plaintiffs have refused to provide any proposed
deposition exhibits to Hotfile. See E-mail of Leibnitz to Fabrizio of 11/18/11 (Leibnitz Decl.,
Ex. 7). While Plaintiffs previously adopted this procedure in advance of Hotfile’s first
deposition – enabling them to complete Hotfile’s deposition on six topics and thirteen subtopics
in two hours – Plaintiffs reject this procedure here so as to obtain Hotfile’s “extemporaneous
answers to [Plaintiffs’] questions.” See E-mail of Fabrizio to Leibnitz of 11/18/11 (Leibnitz
Decl., Ex. 7). Plaintiffs cannot justifiably seek to surprise Hotfile for four consecutive days of
deposition questioning. Indeed, if Plaintiffs wish to conduct their deposition by ambush, they
should not be heard to bemoan a two-day time limit for the deposition.
Plaintiffs refusal to produce the English translations of Bulgarian documents to be used in

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CASE NO. 11-20427-WILLIAMS/TITOV

Hotfile’s deposition is made particularly indefensible given the case law requiring precisely such
production.
[T]he Court finds Plaintiffs’ arguments against production of
already translated documents unpersuasive. Although the
translated documents receive some protection as ordinary work
product . . . Defendant has a substantial need to also have any
existing translations in order to understand the content of the
documents. Further, to force the Defendant to have to translate
documents already translated would cause an undue hardship.
Similarly, the Plaintiffs are required to produce any English
summaries of foreign documents that they have made.
Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 440 (E.D.N.Y. 2011).
Accordingly – assuming that the Court indulges the parties’ joint request to decide this issue as
part of the current motion so as to obtain resolution prior to the parties’ travel to Bulgaria on
December 2, 2011 – the Court should order Plaintiffs to immediately produce their English
translations of documents produced in this case as well as English summaries of foreignlanguage documents.
4.

Plaintiffs Identify No Documents That Have Been Requested But Not
Produced

Plaintiffs have transmitted literally hundreds upon hundreds of e-mails regarding their
discovery demands over the past nine months, filing at least four motions to impose discovery
obligations on Hotfile and a related entity – two of which Plaintiffs have lost outright. [Docket
Nos. 59, 145; see also Docket Nos. 128 and 146 (denying Plaintiffs’ motions in part).] Many of
these motions and e-mails have either involved a request for sanctions or accused Hotfile or its
counsel of unethical conduct. [E.g., Docket No. 14 at 1; Docket No. 72 at 3; Docket No. 85 at
1.] In their fury, Plaintiffs’ lead counsel has even disparaged Hotfile’s counsel as evidently
incapable of understanding the English language. Yet for all of this vitriol, Plaintiffs identify no
documents in their Motion that they have requested but which Hotfile has not produced.
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CASE NO. 11-20427-WILLIAMS/TITOV

Plaintiffs’ failure to identify any such documents in their opening papers – to which Hotfile
would have an opportunity to respond, as opposed Plaintiffs’ reply brief – condemns any
argument by Plaintiffs on this subject.
5.

Plaintiffs Have One Counsel, Not Many, And Act As One

The federal rules do not permit each party to depose an adversary for seven hours, yet
this is essentially what Plaintiffs seek in demanding four days of deposition for five Plaintiffs. In
fact, Plaintiffs in this case have acted as a unit, filing a joint complaint, proposing joint discovery
demands, answering discovery jointly, filing joint motions, and acting through one counsel.
Indeed, the Plaintiffs’ unitary trade association, the Motion Picture Association of America
(“MPAA”), holds itself out as the single mastermind of this litigation. See Leibnitz Decl., Ex. 8
(MPAA press release announcing at the filing of this litigation that “The Motion Picture
Association of America, Inc. (MPAA) on behalf of its member studios today filed a lawsuit
against the operators of the download hub service Hotfile”). Here, there is no risk of
“duplicative questioning” from many counsel as contemplated under the Federal Rules.
Plaintiffs cannot credibly argue that the Court should extend Hotfile’s deposition on grounds
simply because multiple parties make the same infringement allegations against Hotfile.
6.

Hotfile Seeks No Additional Time For Questioning

The Rules permit extension of Hotfile’s deposition so that Hotfile’s counsel may ask
questions. Hotfile seeks no such extension. Accordingly – as with all of the other exceptions to
the seven-hour rule contemplated by the Advisory Committee – Plaintiffs make no credible case
for extending Hotfile’s deposition beyond the two and one-third days already offered.
B.

Plaintiffs Cannot Blame Hotfile For Plaintiffs’ Failure To Even Attempt To
Obtain Depositions Of Additional Witnesses Under The Hague Convention

Plaintiffs assert that Hotfile has thwarted Plaintiffs’ efforts to obtain depositions of
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CASE NO. 11-20427-WILLIAMS/TITOV

individuals abroad who have performed work for Hotfile, thus necessitating the quadrupling of
the seven-hour deposition limit in this case. Mot. at 4. However, Hotfile bears no culpability for
Plaintiffs’ failure over the past six months to even seek the deposition of witnesses abroad.
In its initial disclosures of May 2, 2011, Hotfile informed Plaintiffs that it relied upon
four contractors to perform tasks of server administration, e-mail support, software development,
and data center support. Leibnitz Decl. ¶ 5. Three of these individuals are Bulgarian citizens
residing in Bulgaria. One American citizen resides in Texas.
For the following five months, Plaintiffs made no apparent effort to seek the deposition
of these individuals. Eventually, on September 29, 2011 – ignoring the Hague Convention On
Taking Evidence Abroad – Plaintiffs demanded the deposition of the three Bulgarian citizens in
Miami under the Federal Rules of Civil Procedure. See E-mail from Leibnitz to Pozza of
9/29/11 (Leibnitz Decl., Ex. 9). Plaintiffs asserted that every Bulgarian individual who had ever
done work for Hotfile was Hotfile’s “managing agent” and thus subject to deposition under
American procedural rules regardless of their citizenship, residence, or any international
convention. See E-mail from Leibnitz to Pozza of 10/5/11 (Leibnitz Decl., Ex. 10). When
Hotfile requested factual support for Plaintiffs’ characterization of these three individuals as
“managing agents” subject to deposition in the absence of the protections of the Hague
Convention – a proposition on which Plaintiffs admitted bearing the burden of proof – Plaintiffs
commanded Hotfile to “stop playing games,” halt the “abuse of the meet-and-confer process,”
stop “obviously seeking to stonewall and delay,” make only “whatever arguments you ethically
can,” and abandon this “sham of a meet-and-confer.” See E-mail from Fabrizio to Leibnitz of
10/6/11 (Leibnitz Decl., Ex. 11). The following day, Plaintiffs abandoned their deposition
notices without ever identifying a single document supporting their position. See E-mail from

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CASE NO. 11-20427-WILLIAMS/TITOV

Fabrizio to Leibnitz of 10/7/11 (Leibnitz Decl., Ex. 11). Having refused to justify their
deposition notices under the Federal Rules of Civil Procedure, Plaintiffs cannot credibly fault
Hotfile for Plaintiffs’ own failure to seek these depositions under the Hague Convention.
Plaintiffs cite Rahman v. The Smith & Wollensky Restaurant Group, Inc., No. 06 Civ.
6198, 2009 WL 72441 at *4 (S.D.N.Y. Jan. 7, 2009), for the proposition that parties may obtain
additional deposition time when “unable to elicit testimony from other witnesses.” Mot. at 4.
However, in Rahman, it was not the examining party’s fault that other depositions could not
proceed: plaintiff Mohammed Rahman was “the only identified class member” in the
employment discrimination class action. Id. Here, Plaintiffs have taken no identifiable action in
the entire pendency of this action to seek the deposition abroad of witnesses identified over six
months ago. In any event, the defendant in Rahman only succeeded in obtaining eleven hours of
Mr. Rahman’s deposition, where Hotfile has already offered Mr. Titov for over sixteen hours of
deposition here.
Plaintiffs then accuse Hotfile of frustrating Plaintiffs’ efforts to depose the three
Bulgarian consultants by refusing to directly employ them – as if Hotfile chose to hire
consultants rather than employees at its founding over two years ago to aggravate Plaintiffs.
Mot. at 4. Plaintiffs overlook the irrelevance of the employment status of the Bulgarian
witnesses. Foreign citizens residing abroad do not waive their protections under the Hague
Convention simply by working for a party litigating in the United States. E.I. DuPont De
Nemours & Co. v. Kolon Industries, Inc., 268 F.R.D. 45, 47-48 (E.D. Va. 2010). Plaintiffs
would still need to prove their “managing agent” status to avoid the Hague Convention – which

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Plaintiffs cannot do.4
C.

The Fact That Defendant’s 30(b)(6) Witness Will Be The “Principal” Witness
For Hotfile And May Testify Regarding Every Claim And Defense Is A
Truism For Any Corporate Deposition And In No Way Justifies Extending A
Deposition Beyond Two Days

In their Motion, Plaintiffs seek four seven-hour days of deposition with Mr. Titov on
grounds that “Hotfile’s Rule 30(b)(6) deposition will be the principal deposition in the case” and
must cover topics relating to “every claim and defense in the case.” Mot. at 2, 4. But a corporate
party’s deposition pursuant to Rule 30(b)(6) is that party’s principal deposition in every case
almost by definition: it is the deposition where the corporation testifies based upon information
reasonably available to it about every topic relevant to any claim or defense identified with
particularity in the deposition notice. Fed. R. Civ. P. 30(b)(6). If a party could evade the sevenhour rule by characterizing its opponent’s deposition as “the principal deposition in the case,” the
seven-hour rule would lack meaning.
Plaintiffs also assert that “[t]he evidence needed to establish defendants’ liability . . .
largely is in the possession of Hotfile.” Mot. at 4. This is true in every case where a defendant’s
conduct is at stake, and particularly where knowledge or intent remains an element of a claim or
defense. Id. at 4-5 (identifying topics for deposition, including Hotfile’s conduct [“material
contribution to infringement”], “Hotfile’s intent,” and “Hotfile’s knowledge”). It does not justify
quadrupling of deposition durations in every fraud, infringement, discrimination, or tort claim
before the Court. Likewise, Hotfile’s assertion of twelve affirmative defenses: (1) is hardly

4

Plaintiffs assert without citation that Bulgarian law “would afford a relatively limited
examination” of witnesses. Mot. at 4. As this Court has already ruled in this case, parties cannot
rely on Bulgarian law “without quotation or analysis,” since “judges are not like pigs, hunting for
truffles buried in briefs.” [Docket No. 128 at 6.] Here, Plaintiffs do not even cite the Bulgarian
authority allegedly involved. Plaintiffs thus cannot credibly argue that Bulgarian law justifies
extended deposition time here.
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CASE NO. 11-20427-WILLIAMS/TITOV

uncommon, see Second Amended Answer ¶¶ 71-82 [Docket No. 161]; (2) involves facts with
substantial overlap, id. ¶ 73 (implied license), ¶ 75 (laches), ¶ 76 (estoppel), ¶ 77 (waiver), ¶ 78
(unclean hands), 79 (failure to mitigate damages); and (3) relies upon the same operative facts as
Plaintiffs’ case, id. ¶ 74 (failure to state a claim), ¶ 80 (absence of exclusive right or title).
Nothing about Plaintiffs’ case or Hotfile’s defenses justifies four days of corporate and
individual testimony from Anton Titov.
Plaintiffs mistakenly rely on Arista Records LLC v. Lime Group LLC, No. 06-Civ.-5936,
2008 WL 1752254 at *3 (S.D.N.Y. Apr. 16, 2008). In that case, the court ordered the deposition
of the Chief Operating Officer of a defendant “with significant resources” for two and one-half
days. Id. at *2-3. Here, Hotfile – with its three shareholders and three current consultants – has
offered the deposition of Mr. Titov for two and one-third days. Even under Plaintiffs’ authority,
no basis exists to depose Hotfile and Mr. Titov for four days.
In fact, precedent supports only one day of deposition for Hotfile through Mr. Titov. See
Spencer, 2006 WL 2734289 at *1 (“Each deponent is entitled to a presumption that his or her
testimony will last no more than seven hours even if testifying both individually and as a
corporate designee under Rule 30(b)(6).”). While precedent in this District states that an
interrogating party may obtain a second deposition of an individual not previously identified as
the party’s 30(b)(6) witness, DHL Express (USA), Inc. v. Express Save Industries, Inc., No. 0960276-CIV, 2009 WL 3418148 at*3 (S.D. Fla. Oct. 19, 2009), this does not suggest “that the
inquiring party has carte blanche to depose an individual for seven hours as an individual and
seven hours as a 30(b)(6) witness.” Sabre v. First Dominion Capital, LLC, No. 01CIV2145,
2001 WL 1590544 at *2 (S.D.N.Y. Dec. 12, 2001). Specifically:
In the case of many closely held corporations, the knowledge of an
individual concerning a particular subject also constitutes the total
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CASE NO. 11-20427-WILLIAMS/TITOV

knowledge of the entity. In such a situation, the witness could
simply adopt the testimony he or she provided in a former
capacity, thereby obviating the need for a second deposition.
Id. Here, Hotfile is a closely-held corporation with three shareholders. It can come as no
surprise to Plaintiffs that the knowledge of one shareholder – Mr. Titov – will coincide with the
knowledge of Hotfile on topics currently noticed for deposition. Accordingly, Plaintiffs may
properly claim only one day of deposition – as opposed to the two and one-third days offered by
Hotfile or the four days demanded by Plaintiffs. See Forte Capital Partners, LLC v. Harris
Cramer, LLP, No. C-07-1237, 2008 WL 4924724 at *3-5 (N.D. Cal. Nov. 14, 2008) (rejecting
motion to compel deposition of defendant corporation for more than two days and two hours on
grounds that “the deposing party does not have carte blanche to depose an individual for seven
hours as an individual and seven hours as a 30(b)(6) witness”).
D.

Every Case Can Claim To Be Complex – But That Does Not Justify
Quadrupling Parties’ 30(b)(6) Deposition Obligations

Plaintiffs attempt to justify their demand for four days of deposition of Hotfile and Mr.
Titov on grounds that “the deposition will need to cover highly complex and technical subject
matter.” Mot. at 5. But nearly every case can claim to be complex, and many cases involve
technology, and yet no case is presumptively entitled to more than one seven-hour deposition
under Rule 30(b)(6). This is a copyright infringement case. The core issues involve compliance
with the Digital Millennium Copyright Act (“DMCA”), and not technical issues. Plaintiffs may
of course choose to spend time at deposition in scrutiny of “the technical intricacies of Hotfile’s
file storage system” and “technical features Hotfile built into [its] system,” but this Court has
already rejected such inquiries as unnecessary. Specifically, on August 26, 2011, the Court
rejected Plaintiffs’ motion to compel production of Hotfile’s source code on grounds that the
proffered justifications were speculative, see Docket No. 128 at 3 (“[t]he notion that examination
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CASE NO. 11-20427-WILLIAMS/TITOV

of the source code might suggest how to make a better method of infringement detection is
speculative”), unnecessary to the case, id. at 2-3 (“plaintiffs’ own expert opines that it is possible
to describe a computer program” without delving into the minutiae of computer code), and
inapposite, id. at 3 (noting that this is not a “patent, breach-of-contract, or copyright dispute
about the source code itself”). While Hotfile will not stop Plaintiffs from indulging in these
inquiries, reasonable time limits remain appropriate regarding depositions which needlessly
detour into minutiae.
E.

Hotfile Does Not Require A Translator For Mr. Titov’s 30(b)(6) Deposition –
As Plaintiffs Knew When Moving For A Translation-Based Extension Of Mr.
Titov’s Deposition

In this Motion filed November 16, 2011, Plaintiffs assert that “defendants have
repeatedly insisted that plaintiffs would need translators for Mr. Titov.” Mot. at 6. This is
misleading. After investigating the issue – and three weeks before this Motion – Hotfile
explicitly informed Plaintiffs that Mr. Titov spoke English and would not need a translator. See
E-mail from Thompson to Fabrizio of 10/26/11 (Leibnitz Decl., Ex. 2). Any doubt Plaintiffs
may have had on the issue wsa removed the day after they filed this Motion when they
conducted a two-hour deposition of Mr. Titov on complex technical database structures entirely
in English. Hotfile therefore asked Plaintiffs to retract their request for additional deposition
time insofar as it relied upon Hotfile’s “repeated[] insist[ence] that plaintiffs would need
translators for Mr. Titov.” See E-mail from Thompson to Pozza of 11/19/11 (Leibnitz Decl., Ex.
12). While Plaintiffs admitted knowing at the time they made the representation that Hotfile was
not requesting a translator, see Fabrizio e-mail to Leibnitz of 11/19/11 (Leibnitz Decl., Ex. 12)
(“Yes, for weeks . . . you have been telling us Titov will testify without a translator”), Plaintiffs
declined to withdraw the agrument. Mot. at 6. Plaintiffs cannot justifiably persevere in seeking

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CASE NO. 11-20427-WILLIAMS/TITOV

an extended deposition of Hotfile due to Hotfile’s “repeated[] insist[ence]” on translation. Mr.
Titov requires no translator.
F.

In The Unlikely Event That Plaintiffs Require Additional Time After The
Deposition Days In Bulgaria, Plaintiffs May Take The Deposition Of Hotfile
By Video Conference As They Have Done Before

Plaintiffs demand four days of deposition with Hotfile and Anton Titov between
December 5-8, 2011 on grounds that “the location of the deposition in Bulgaria effectively
forecloses seeking additional time and resuming the deposition at a later date.” Mot. at 7.
However, Plaintiffs have already taken one two-hour deposition of Hotfile pursuant to Rule
30(b)(6) by videoconference, a practice encouraged by this Court. See Balu v. Costa Crociere
S.P.A., No. 11-60031-CIV-UNGARO/TORRES, 2011 U.S. Dist. LEXIS 85299 at *5 (“The
Court sees little reason here why a video-conferenced deposition of any corporate representative
witnesses will not suffice.”) In the unlikely event that additional time is required, Plaintiffs
could take videoconference testimony from Hotfile again.5

5

Plaintiffs characterize it as a “claim” rather than an indisputable fact that Mr. Titov cannot
obtain a visa to travel to the United States prior to the close of discovery on December 23, 2011.
Mot. at 7. However, Mr. Titov has already produced to Plaintiffs the visa rejection from U.S.
Vice Consul Andrew Baker in Sofia within nine days of Plaintiffs’ request for Mr. Titov’s
deposition. See Leibnitz Decl., Ex. 13. Since the last time Mr. Titov renewed his passport in
Bulgaria, the Russian Federation has stopped processing renewals in Sofia, and now requires all
passports to return to Moscow – necessitating a “three-month delay” as recently announced on
the official website of the Russian consulate in Bulgaria. See Leibnitz Decl., Ex. 14 (stating in
Russian, “In connection with changes in the legislation of the Russian Federation, the time of
obtaining of common-citizenship foreign-travel passports of the Russian citizens who
permanently reside outside the territory of the Russian Federation increased to 3 months. The
above changes to take effect April 1, 2009.”). Although Plaintiffs have threatened to seek
sanctions against Mr. Titov personally, Plaintiffs have never identified any action that Mr. Titov
could have taken differently other than monitor the website of the Russian consulate in Bulgaria
since April 1, 2009 for an administrative announcement regarding passport renewals for which
he had no present need so that he might one day avoid inconveniencing Plaintiffs here.
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CASE NO. 11-20427-WILLIAMS/TITOV

G.

Plaintiffs Cite No Authority Supporting The Proposition That A
Counterclaim Defendant Has The Right To An Additional Day Of 30(b)(6)
Deposition From An Opponent

Plaintiffs assert with evident incredulity that “defendants somehow claim that
counterclaim defendant Warner is not entitled to a separate Rule 30(b)(6) deposition of Hotfile”
in addition to Plaintiffs’ two-day 30(b)(6) deposition of Hotfile. Mot. at 8. Plaintiffs’ two-page
denunciation of Hotfile’s “baseless” position suffers from a vacuum of legal authority. Id. at 8-9.
From the first time that Plaintiffs asserted the position that the existence of a compulsory
counterclaim automatically entitles Plaintiffs to additional deposition time, Hotfile has asked
Plaintiff to provide legal authority for their position. They have provided none, either in the
meet-and-confer discussions or in their Motion. And to Hotfile’s knowledge none exists.
In fact, Plaintiffs’ own authority cited elsewhere in its brief refutes Plaintiffs’ contention
that they can collectively notice a deposition of Hotfile for December 7-8 while one Plaintiff
(Warner) separately notices a deposition of Hotfile on December 6. In Canal Barge Co. v.
Commonwealth Edison Co., No. 98-C-0509, 2001 WL 817853 at *4 (N.D. Ill. July 19, 2001),
Defendant ComEd served six separate notices of deposition under Rule 30(b)(6), unilaterally
dividing its proposed topics for deposition among six separate days despite Plaintiff’s
designation of one representative on all topics. The court rejected ComEd’s effort. See id.
(“ComEd has not provided the Court with any case authority for its argument that it can simply
serve six separate notices of deposition under Rule 30(b)(6) and be automatically entitled to six
full days of depositions regardless of the number of corporate representatives designated by
Canal Barge.”) Here, just as ComEd could not properly divide deposition topics among six days,
Plaintiffs cannot unilaterally divide amongst three days those deposition topics related to
Plaintiffs’ copyright claims, Hotfile’s defenses under the DMCA, and Hotfile’s compulsory

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CASE NO. 11-20427-WILLIAMS/TITOV

counterclaim under the same statute. Id.
Attempting to deflect scrutiny, Plaintiffs accuse Hotfile of demanding two seven-hour
days of deposition from Warner on Hotfile’s DMCA defense and its compulsory counterclaim.
Mot. at 9. Plaintiffs misapprehend. Hotfile has taken five hours of deposition from Warner
under Rule 30(b)(6) regarding Hotfile’s counterclaims, and now proposes to take two additional
hours on Warner’s affirmative claims. This amounts to seven hours, not fourteen.
The court in Canal Barge ultimately found that “the solution to the problem lies in
requiring ComEd to make efficient use of its time.” Id. The court accordingly cut ComEd’s
demanded 30(b)(6) deposition time in half. This Court should do the same.
V.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to depose Anton Titov as Hotfile’s Rule

30(b)(6) deponent for over four days should be denied, and Defendants’ Cross-Motion for a
protective order limiting its depositions to the five days Defendants have proposed should be
granted.

Likewise, Defendants’ request for immediate production of Plaintiffs’ English

translations of produced documents should be granted. A proposed Order is attached as Exhibit
“B.”

Dated: November 25, 2011

Respectfully submitted,

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CASE NO. 11-20427-WILLIAMS/TITOV

s/ Andrew Leibnitz
Roderick M. Thompson (Admitted pro hac vice)
[e-mail]
Andrew Leibnitz (Admitted pro hac vice)
[e-mail]
Anthony P. Schoenberg (Admitted pro hac vice)
[e-mail]
Deepak Gupta (Admitted pro hac vice)
[e-mail]
Janel Thamkul (Admitted pro hac vice)
[e-mail]
FARELLA BRAUN & MARTEL LLP
235 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480

And
s/ Janet T. Munn
Janet T. Munn, Fla. Bar No. 501281
Rasco Klock
283 Catalonia Avenue, Suite 200
Coral Gables, FL 33134
Telephone: [phone]
Telecopy: 305.476.7102
Email: [e-mail]
Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on November 25, 2011, the foregoing document was served on all
counsel of record or pro se parties identified below either via transmission of Notices of
Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or
parties who are not authorized to receive electronically Notices of Electronic Filing.

By: s/Janet T. Munn
Janet T. Munn

Karen L. Stetson, Fla. Bar No.: 742937
GRAY-ROBINSON, P.A.
Email: [e-mail]
1211 Brickell Avenue
Suite 1600
Miami, FL 33131
Phone: [phone] Fax: [phone]

Daniel M. Mandil, Esq. Motion Picture
Association of America, Inc.
15301 Ventura Boulevard Building E
Sherman Oaks, CA
818-935-5812
Email: [e-mail]

Steven B. Fabrizio (Pro Hac Vice )
Email: [e-mail]
Duane C. Pozza (Pro Hac Vice )
Email: [e-mail]
Luke C. Platzer (Pro Hac Vice )
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Ave, N.W.
Suite 900
Washington, DC 20001
Phone: [phone] Fax: [phone]

Karen R. Thorland, Esq.
Senior Content Protection Counsel
Motion Picture Association of America, Inc.
15301 Ventura Boulevard Building E
Sherman Oaks, CA
818-935-5812
Email: [e-mail]

4836-7103-2846, v. 1

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