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)

EXHIBIT 11

Leibnitz, Andrew (21) x4932
From:
Sent:
To:
Cc:

Subject:

Fabrizio, Steven B [[e-mail]]
Friday, October 07, 2011 6:50 AM
Leibnitz, Andrew (21) x4932
Pozza, Duane; Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony .(28) x4963;
Gupta, Deepak (22) x4419; Thamkul, Janel (28) x4467; [e-mail] ;
[e-mail]
RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

Game playing with polite and measured language is still game playing and we believe the
Court will see it for what it is. To be clear, Rod told me unequivocally that your clients had
instructed you to refuse the depositions of Messrs. Chuburov, Manov, and lanakov and that
those depositions were effectively a dead issue. "Dead issue" is my language, but Rod's
message was equally unequivocal. Thus, we understand that, for these witnesses, we will
need to either seek the Court's intervention to compel their depositions or move the rules for
international discovery.
To move this forward, we will adjourn the dates of the Chuburov, Manov, and lanakov. That
will give us a chance to analyze the documents produced (and yet to be produced), and we will
then be in a position to present you with the nature of evidence that would support our
motion. In the meantime, we request that you explain to us what role these witnesses played
in the operation and management of Hotfile. That of course is information that you have in
your possession. And the meet-and-confer obligation extends in both directions. Information
from you as to defendants' view of these witnesses will inform and advance our own analysis
of the discovery and decision-making.
Now we would like to "more productively focus on the notices of deposition of Messrs.
Vangelov and Stoyanov." Rod indicated to me that, while you were taking the lead on this,
defendants were prepared to produce these witnesses for depositions under the federal rules
provided the depositions could be conducted in Sofia. Can you please confirm whether that is
the case.
Anticipating your intermediate response, we cannot agree to a quid pro quo with the Hotfile
30b6 and Titov depositions. We believe we are entitled to have those witnesses appear in the
jurisdiction and are not open to taking the Hotfile 30b6 and Titov depositions in Sofia for the
reasons Duane has explained. Moreover, while Duane explained that we are happy to discuss
alternative venues in the United States, it is premature to discuss the Hotfile 30b6 and Titov
depositions as we have not even noticed them yet. So we would appreciate a response as to
Messrs. Vangelov and Stoyanov that is not linked to the Hotfile 30b6 and Titov depositions.
SBF
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From: [e-mail] [mailto:[e-mail]]
Sent: Friday, October 07, 2011 9:18 AM
To: Fabrizio, Steven B
Cc: Pozza, Duane; Platzer, Luke C; [e-mail] ; [e-mail] ; [e-mail] ;
[e-mail] ; [e-mail] ; [e-mail]
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

Steve:
Your e-mail below did not answer Rod's question: are the Studios withdrawing the deposition notices for Messrs. Chuburov,
Manov, and Ianakov? While you are correct that Hotfile does not expect to provide depositions of non-managing agents
where there is no legal basis to do so, if the studios are not withdrawing those notices, we need to understand your
contentions.
With respect, it is not "game playing" for Hotfile to ask for Plaintiffs' evidence in support of depositions they noticed -presumably with some basis -- and regarding a subject (the deponents' "managing agent" status) on which Plaintiffs
undeniably bear the burden of proof. We appreciate that Plaintiffs have provided four cases to Hotfile on Friday which
apparently took your side nearly 112 minutes to muster, but, as you know, those cases both granted and denied various
requests for "managing agent" depositions based on a highly "case-specific determination of a person's managing agent
status." DuPont, 268 F.R.D. at 48. There is nothing improper in asking Plaintiffs to provide at least some support for their
position regarding these depositions. That is the point of meeting-and-conferring. Stating that "[d]efendants know" operative
facts in no way advances our understanding of which of the nearly three million documents produced by Hotfile that
Plaintiffs relied upon in noticing these depositions. If your reference to "key discovery not yet produced" is a suggestion that
Plaintiffs cannot presently identify factual support for the depositions noticed last week, Plaintiffs may of course withdraw
their notices. While you dismiss Hotfile's present discussion as "tell me what evidence you have and maybe we'll tell you our
position," this is incorrect. We will of course tell you our position once we understand your alleged basis for establishing the
facts on which you bear the burden of proof. You cannot reasonably expect Hotfile to rebut facts you have not provided. It
is implausible that counsel of your sophistication would "immediately move to compel" without providing the Court with
further evidentiary support, and relying solely upon the conclusory arguments of counsel set forth in your side's e-mail of
2:30 p.m. on Tuesday, October 4, 2011. Rather than draft a full-fledged motion which would presumably incorporate factual
support which you have so far withheld, we respectfully request again that you provide at least some factual support for
Plaintiffs' position in response to my questions of the past week. If you continue to believe that supporting your position is a
"sham" exercise, we cannot stop you from proceeding as you see fit. However, we will of course reserve all rights in
response, especially given that our lead counsel has already indicated our side's open-mindedness to discussing this matter
with you. In particular, it would be helpful if Plaintiffs would withdraw the notices of deposition of Messrs. Chuburov,
Manov, and lanalcov (regarding at least one of which I have yet to hear any explanation as to how Plaintiffs' own authority
does not explicitly forbid his deposition as a former contractor) so that we could more productively focus on the notices of
deposition of Messrs. Vangelov and Stoyanov.
Regards,
ANDY
N. Andrew Leibnitz
Attorney at Law
Farella Braun + Martel LLP
415.954.4932

----Original Message
From: Fabrizio, Steven B [mailto:SFabriziojenner.com]
Sent: Thursday, October 06, 2011 7:54 AM
To: Thompson, Rod (27) x4445
Cc: Leibnitz, Andrew (21) x4932; Pozza, Duane; Platzer, Luke C; Schoenberg, Tony (28) x4963; Gupta, Deepak (22) x4419;
Thamkul, Janet (28) x4467; [e-mail] 1; '[e-mail] '
Subject: Re: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Rod - why don't you give us your position on the other two so we can decide what to do about the Blue Ant people.
You will forgive me if this feels very much like a game. We provided our notices, then, at your request, the legal authority
supporting our view (a hoop we shouldn't have to jump through for a basic proposition of the federal rules). Defendants know
whether the three performed functions that would make them subject to noticed depositions. A meet and confer is not to put
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the other side through the exercise of seeing whether they have marshaled enough evidence from your recently produced
discovery (with the key discovery not yet produced) so as to meet their burden of proof. You have the facts and access to the
facts. You should make a determination and tell us. It is not a game of "tell me what evidence you have and maybe we'll tell
you our position.". That is game playing, pure and simple.
We can save for now our different memories of how equivocal or unequivocal you were in our call.
Please let us have your positions this morning. There is much to do if we need to go the motions or international discovery
routes.
SBF
Sent from Blackberry
Original Message
From: Thompson, Rod (27) x4445 [mailto:RThompsona D,fbm.com ]
Sent: Thursday, October 06, 2011 09:12 AM
To: Fabrizio, Steven B
Cc: [e-mail] <[e-mail] >; Pozza, Duane; Platzer, Luke C; Anthony P. Schoenberg
<[e-mail] >, Deepak Gupta <[e-mail] >; Janel Thainlcul <[e-mail] >; Janet Munn
<[e-mail]>; [e-mail] <[e-mail] >
Subject: Re: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Steve, I also told you I was not fully informed on the issue and made clear to you that Andy is taking the lead. You asked if
the depositions could be taken under the FRCP in Miami and as courtesy I gave you my prediction as to where the meet and
confer would end up.
Andy is hardly playing games by asking for justification for all depositions. If the studios are withdrawing three deposition
notices, we can focus on the other two.
Rod Thompson
Sent from my tablet
On Oct 6, 2011, at 6:56 AM, "Fabrizio, Steven B" <SFabrizio@jenne•.com> wrote:
> Andy - Can you please stop playing games. It is an abuse of the meet-and-confer process. Rod has told me that defendants
will agree to produce Messrs. Vangelov and Stoyanov in Sofia under the federal rules. He also told me that you have strict
instructions from your clients that your are not going to voluntarily produce the other three in Sofia or anywhere, and that that
is not going to change. While we have generally agreed that our private conversations will not be quoted back at each other
in court papers, there is a point at which you are just obviously seeking to stonewall and delay.
> Please confirm your positions and we can proceed accordingly. If you choose not to, we will immediately move to compel
and you can make whatever arguments you believe you ethically can -about our allegedly failure to continue a sham of a
meet-and-confer after defendants' lead counsel has already stated defendants' position. I am sure a Judge brand new to the
case and the parties will appreciate your tactics.
> SBF

> From: Andrew Leibnitz <[e-mail] <mailto:[e-mail] >>
> Date: Thu, 6 Oct 2011 08:27:18 -0500
> To: Duane Pozza <[e-mail] <mailto:DPozza0,ienner.com >>
> Cc: Steven Fabrizio <[e-mail] <mailto:sfabriziogenner.com>>, Luke Platzer
<[e-mail] <mailto:LPlatzerOjenner.com>>, "Roderick M. Thompson"
<[e-mail] <mailto:rthompsonaabm.com>>, "Anthony P. Schoenberg"
<[e-mail] <mailto:tschoenbergO,fbm.com >>, Deepak Gupta <[e-mail] <mailto:[e-mail]>>,
Janel Thamlcul <[e-mail] <mailto:[e-mail] ► n>>, Janet Munn
<[e-mail] <mailto:jmunnO,rascoklock.coin>>,
"[e-mail] <mailto:vgurvitsP,bostonlawgroup.com >"
<[e-mail] <mailto:[e-mail] >>
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> Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
> Duane:
> The point of a meet-and-confer is to get an understanding of each others' positions. Under the authority that you have
provided, Plaintiffs bear the burden of proving as a factual matter that all of the proposed deponents are managing agents
under the Federal Rules of Civil Procedure. You have never denied Plaintiffs' burden. Accordingly, you cannot reasonably
seek to enforce "managing agent" deposition notices without providing even one document supporting your position. As you
know, Hotfile has produced a massive amount of discovery in this case, amounting to nearly three million pages of
documents. Plaintiffs cannot justifiably wave at Hotfile's entire production and assert that "[y]ou can review the documents
as well as we can." The point of the meeting-and-conferring is to understand which of the millions of pages of documents
produced in this case you would cite as evidence that the proposed deponents act as Hotfile's managing agents. This will
permit Hotfile to make a reasoned decision on this matter. While you state that "[w]e are not going to engage in a lengthy
discussion of specific documents showing that Chuburov, Manov, or Ianakov exercise discretion in their operations on behalf
of Hotfile," you have undertaken no discussion at all of the factual basis for deposing any individuals as managing agents -much less a "lengthy" discussion. Accordingly, I respectfully repeat my request that Plaintiffs identify its purported factual
support for its assertion that the proposed deponents are all "managing agents" of Hotfile. Your email does not even attempt
to provide evidentiary support in response to even one of the questions posed in my e-mail below. Please respond to those
questions.
> In regard to Anton Titov, why do you believe (again without any recitation of evidence) that Hotfile - with only a handful
of individuals who have ever performed work for it - would have more than one managing agent in relation to the subject
matter of this litigation? If you have authority suggesting that even the smallest companies must have more than one
managing agent in relation to any litigation, please let us know. Hotfile is willing to discuss "managing agent" depositions
with Plaintiffs, but you must let us know your basis in order for us to respond.
> Of particular note, you did not attempt to justify Plaintiffs' request for the deposition of Stanislav Manov as a current
"managing agent" of Hotfile, even though he has not worked for Blue Ant (much less Hotfile) for some time. Plaintiffs' own
authority states that "former employees cannot be managing agents of a corporation." Honda, 168 F.R.D. at 541. If Plaintiffs
have any evidence supporting his deposition, please let us know.
> Thank you for confirming Plaintiffs' position that any of the presently-noticed depositions will occur in Bulgaria. By way
of advance notice (and in case this helps with the "logistics" issues to which you previously referred), please know that an
interpreter will be required for any of these depositions. Let us know if there are additional logistical issues to discuss.
> I look forward to hearing back from you.
> Andy
> N. Andrew Leibnitz
> Attorney at Law
> Farella Braun + Martel LLP
> 415.954.4932

> Steven B. Fabrizio
> Jenner & Block LLP
> 1099 New York Avenue, N.W.
> Suite 900
> Washington, DC 20001-4412
> Tel [phone]
> Fax [phone]
> SFabriziogenner.com
> wwwjenner.com <http://wwwjenner.com/>

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