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 2

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

Thompson, Rod (27) x4445
Wednesday, October 26, 2011 5:04 PM
Fabrizio, Steven B
RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

Steve:
We had indicated that Mr. Titov might request translation, given that English is his third
language. After conferring further, Mr. Titov has agreed to conduct his deposition in English.
Accordingly, there will be no need for a translator, and thus we understand that Plaintiffs will
depose Mr. Titov in all of his capacities as may relate to this case over the course of two 7hour days pursuant to your statements below.
Regarding Mr. Titov's visa, he participated in an interview at the U.S. consulate in Sofia at
approximately 10:00 a.m. yesterday morning (Bulgaria time). He delivered his passport to the
authorities there. We understand that the matter remains under review with the United
States authorities in Sofia. We will let you know what we hear after we receive any further
news.
Rod
From: Fabrizio, Steven B [mailto:[e-mail]]

Sent: Wednesday, October 26, 2011 2:45 PM
To: Thompson, Rod (27) x4445
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

Rod — Could I get a response to this.
SBF
From: Fabrizio, Steven B
Sent: Friday, October 21, 2011 7:57 PM
To: [e-mail]
Subject: FW: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

You and I had a similar discussion about the number of days we likely will need to Titov's
deposition. Since we will be depositing Titov in his individual capacity (as an individual
party defendant) and as the corporate representative of Hotfile, the rules provide that
we are presumptively entitled to two full days of testimony. The rule, however, is just a
presumption and, as Rule 30(d)(1) expressly provides, the court "must allow additional
time" if needed to fairly examine the deponent. As the authority Duane cites below
makes clear, the need for a translator is ample justification for additional time. I have
1

taken many depositions that required the use of a translator, as I am sure you have as
well. 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. Please
give this thought and let me know as soon as you can. Also, please advise whether Titov
has been in touch with the Bulgarian authorities to attempt to expedite obtaining
whatever documents he needs to enter the US for his deposition. We also would
request to see a copy of his passport to verify that, as he claims, it does not have
sufficient blank space for him to use it to come to the US. Thanks. Have a good
weekend.
SBF
From: Pozza, Duane
Sent: Friday, October 21, 2011 7:40 PM
To: [e-mail]
Cc: Fabrizio, Steven B; 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
Andy,
The basis for adding an extra half-day for each deponent is straightforward here. I don't understand the
support for your claim that Atanas Vangelov is on only 50 emails; by my count, defendants produced
over 1,700 of Mr. Vangelov's documents. Defendants produced over a thousand documents for Mr.
Stoyanov as well, and that does not even count the hundreds of emails on which one of them is copied
that are in the possession of other custodians. Mr. Stoyanov and Mr. Vangelov are two of the three
ultimate shareholders of Hotfile Corp., and each has the power of attorney to act on behalf of Hotfile
Corp. They are also on multiple corporate documents for other entities that have an interest in various
Hotfile-related corporations.
As if that were not enough, the need for a deposition to be translated is well understood to be grounds
for extending the presumptive seven-hour period. See Marlborough Holdings Group, Ltd. v. Pliske
Marine, Inc., No. 08-62075-CIV, 2011 WL 4614704, at *1 (S.D. Fla. Nov. 5, 2010) (granting motion for
additional time of one day for deposition because "use of a translator will effectively reduce the time
available" for the deposition, and the examining party is allowed the "opportunity to fairly examine the
deponent"). FRCP 30(d)(1) provides that "[t]he court must allow additional time consistent with Rule
26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other
circumstance impedes or delays the examination." Frankly, we would entitled to an extra day for each
here, but we are only asking for a half-day in an effort to accommodate their schedules.
As for the stipulation, thanks for your agreement on those specific points. We do not intend to file the
stipulation with the Court in the first instance. But, given that the deposition is taking place abroad and
the witnesses may be unavailable in the future, we need to make sure we have a stipulation that could
be submitted to the Court in case the testimony must be used at a later date. An email agreement is not
sufficient for that. I assume that's not an issue given that we appear to be in agreement on the ground
rules for the deposition. (As one minor point, we may want to conduct the deposition at our Bulgarian
counsel's offices if available.)

2

Let me know about the additional day, and which day would work best, and we can modify the
stipulation accordingly.
Regards,
Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Friday, October 21, 2011 3:47 PM
To: Pozza, Duane
Cc: Fabrizio, Steven B; 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
Duane:

While I was responding to you message below of 39 hours ago, I received another demand from you to
respond to this message. With respect, would you please respond to our request for an answer about
the proposed forensic examination of Hotfile's storage servers, which we posed hundreds of hours
(more than one week) ago? I cannot believe that your questions of yesterday on the subject —to which
you already know answers, such as the location of the servers in Dallas and the deletion of the data in
March —genuinely inhibits your response in any way. Repeating Plaintiffs' requests in 39-hour intervals
while ignoring our aging requests is not helpful. Nonetheless, below please find Hotfile's response to
your 39-hour-old e-mail, which I did not understand to have particular urgency given its subject matter
regarding depositions to occur in approximately seven weeks.
We will appear on the 8 th and 9th of December in Sofia for deposition pursuant to the FRCP. We expect
the law offices of Markov, Penkov & Partners to be available for the deposition (BI 22, Entr. A, Iztok
Dstr., 1113 Sofia). We understand that the deposition will be given under penalty of perjury under the
laws of the United States. We understand that there will be a translator.
However, regarding your proposed stipulation, I have never seen its like. Do you expect to file this with
the Court?
Concerning the duration of the depositions, Rule 30(d)(1) explicitly limits depositions to "1 day of 7
hours." The Rule does not exempt translated depositions. It is obviously not the witnesses' fault that
they speak Bulgarian, and they should not be burdened any more than they already will be. As I
understand it, Messrs. Vangelov and Stoyanov were surprised upon receiving the notices of deposition
that Plaintiffs intended to interrogate them for even a half-day. Mr. Vangelov's name appears on
approximately 50 e-mails. Plaintiffs could examine him for nearly ten minutes regarding every such
document and still complete his deposition in seven hours. Mr. Stoyanov similarly authored a limited
number of documents in this case, and even less that have any possible relevance to Plaintiffs'
allegations. Plaintiffs should not treat these depositions as an opportunity to impose on Bulgarian
citizens a needlessly lengthy and unfamiliar legal interrogation in a foreign language. With thrift, I have
no doubt that experienced counsel can take the depositions of Messrs. Vangelov and Stoyanov in less
than seven hours—even with your chosen translator—and do so comfortably. Of course, we will not
oppose reasonable requests at the deposition to extend time into the evening if needed to fairly
examine the witnesses, and would be pleased to begin the depositions promptly in the morning should
the need for extra time arise. Otherwise, I do not understand why Hotfile would needlessly prolong
these depositions without one question having yet been asked absent a far more detailed justification
than your conclusory characterization of these witnesses as "key."
Regards,

ANDY
• N. Andrew Leibnitz

Attorney at Law
Fa rella Braun + Martel LLP

415.954.4932

From: Pozza, Duane [mailto:[e-mail]]
Sent: Wednesday, October 19, 2011 5:38 PM
To: Leibnitz, Andrew (21) x4932
Cc: Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963; Gupta, Deepak (22)
x4419; Thamkul, Janel (28) x4467; [e-mail] ; [e-mail] ; Fabrizio,
Steven B
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Andy,
Attached is a draft stipulation to conduct the depositions of Mr. Stoyanov and Mr. Vangelov in Bulgaria
under the FRCP. This is subject to final client approval. As for dates, December 8 and 9 should work, but
I am concerned that the translation is going to substantially slow down the pace of the deposition.
Given that these are key witnesses and we want to make only one trip to depose them, I think it would
be fair to extend each an extra day each to compensate for the pace of translation. I think we can
streamline this by allocating one and half days to each deposition, with agreement to go slightly longer
on each day if necessary, so that we finish those in three days total. Please let me know if this is fine
and we can modify the stipulation accordingly.
Thanks,
Duane
From: Pozza, Duane
Sent: Wednesday, October 19, 2011 10:48 AM
To: Leibnitz, Andrew (21) x4932
Cc: Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963; Gupta, Deepak (22)
x4419; Thamkul, Janel (28) x4467; [e-mail] ; [e-mail] ; Fabrizio,
Steven B
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Andy, on deposition scheduling, we've stated from the outset that our willingness to depose Mr.
Stoyanov and Mr. Vangelov in Bulgaria has no bearing on the location of deposing Mr. TitoV, either as a
30(b)(6) witness or in his individual capacity. We plan to notice those depositions and have them go
forward in Florida, for reasons we have explained (see, for example, my October 5 email on this topic).
We will get 30(b)(6) topics to you in the near future —the topics should not be too surprising, as you can
assume they will cover the issues on which we've sought discovery and have discussed at length on
numerous meet-and-confers. As I mentioned on our call, we would like to look at dates prior to
Thanksgiving for Mr. Titov. Would he be available in Miami or DC the week of the 14 th and/or the
beginning of the 21 st?
Thanks for confirming the availability of Mr. Vangelov and Mr. Stoyanov. I will check and confirm
whether those dates work shortly, and also provide any details we have on translator arrangements.
Thanks,
Duane

From: Leibnitz, Andrew (21) x4932 [mailto:[e-mail]]
Sent: Tuesday, October 18, 2011 3:20 PM
To: Pozza, Duane
Cc: Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963; Gupta, Deepak (22)
x4419; Thamkul, Janet (28) x4467; [e-mail] ; [e-mail] ; Fabrizio,
Steven B
Subject: Re: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Duane:

We would like to conduct all depositions in Bulgaria at one time. If MeSsrs. Stoyanov and
Vangelov are the only depositions to be scheduled in Bulgaria, then December 8-9 will work for
us. I will repeat the request here that I made again yesterday by phone that Plaintiffs provide any
Rule 30(b)(6) topics that may impact these depositions as soon as possible. Please also let us
know the identity and qualifications of your proposed translator at your earliest convenience.
I understand that Plaintiffs wish to take the deposition of Anton Titov in his individual and
corporate capacities in Florida. Since we will all apparently be in Bulgaria in December -including Mr. Titov -- would plaintiffs consider taking his deposition in Bulgaria at the same
time? Please let us know your thoughts on the topics and proposed dates for Mr. Titov's
deposition as soon as possible, since arranging his deposition may be challenging.
Andrew Leibnitz
Farella Braun + Martel LLP
On Oct 17, 2011, at 9:29 AM, "Pozza, Duane" <DPozza(iDjenner.com > wrote:
Andy,

We've consulted with Bulgarian counsel, who has advised us that there are no possible criminal
sanctions for deposing a witness in Bulgaria who voluntarily agrees to give testimony. Our counsel
further advises us that we do not need to make any other arrangements with Bulgarian authorities.
That said, if you believe there are any applicable laws (including criminal laws), please let us know which
ones you believe to apply so we can further consult with our counsel — if you believe there is some
procedural issue, or that we are violating some criminal statute, let us know up front. We'll obviously
comply with all applicable Bulgarian laws.

Assuming your agreement that the depositions of Mr. Vangelov and Mr. Stoyanov may take place under
the Federal Rules of Civil Procedure, we'll send you a stipulation confirming that, and then reissue the
notices. In light of the need to plan for international travel, I'm afraid your suggested dates are too
soon. What is their availability of the witnesses from Nov. 30 through the end of the following week?

Regards,
Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Thursday, October 13, 2011 1:04 PM
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:

We have conveyed to our client your withdrawal (at least for now) of the notices of deposition of
Messrs. Chuburov, Manov, and lanakov. Having done that, I am confused by your apparent reservation
of the right in your e-mail below to petition the Court for relief regarding their depositions (i.e., "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"). So that it does not go unstated, in our view
you cannot legitimately attest in support of any motion to compel regarding these depositions that the
parties have reached an impasse at this point. Regardless of your perception of your conversation with
Rod, please understand that Hotfile is willing to consider in good faith all deposition notices provided by
Plaintiffs. We simply seek to understand any basis for those deposition notices as to facts on which
Plaintiffs bear the burden before deciding one way or the other. From our preliminary perspective, it
appears that Messrs. Chuburov, Manov, and lanakov: do not exercise any managerial discretion over
Hotfile; do not work for Hotfile (indeed, Mr. Manov has not worked for Hotfile or Blue Ant for months);
have no particular stake in whether Hotfile prevails in the litigation; and do not supervise anyone at
Hotfile, Blue Ant, or indeed anywhere else.

Regarding the proposed depositions of Messrs. Vangelov and Stoyanov, we are inquiring into dates of
availability of both witnesses and counsel in Sofia. Understanding that our inquiry into available dates is
preliminary, might the 3 rd and 4 th of November work? In the meantime, have you made any necessary
arrangements to avoid any criminal sanction for lawyers taking depositions of Bulgarian citizens
pursuant to my e-mail of June 3, 2011? We have taken no action to obtain authorization from any
Bulgarian authority, nor have we reserved space at any consulate for the deposition, if such measures
are required. I would welcome information regarding your findings concerning the requirements for
taking depositions in Bulgaria.

As a final note, can you please provide us with any 30(b)(6) topics you might think relate to Messrs.
Vangelov or Stoyanov? As you can imagine, we do not wish to make serial trips to Bulgaria for these
depositions.

Regards,

ANDY

N. Andrew Leibnitz

Attorney at Law
FareIla Braun + Martel LL[

415.954.4932

From: Fabrizio, Steven B [mailto:[e-mail]]
Sent: Friday, October 07, 2011 8:32 AM
To: Thompson, Rod (27) x4445; Leibnitz, Andrew (21) x4932
Cc: Pozza, Duane; Platzer, Luke C; Schoenberg, Tony (28) x4963; Gupta, Deepak (22) x4419; Thamkul,
Janel (28) x4467; [e-mail] ; [e-mail]
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

We are awaiting Andy's response to my last email. You are absolutely right about
the purpose of the call and my appreciation for your understanding of Disney's
need for additional time due to technical issues. As for the rest of our discussion,
why don't we just leave that dispute for another day, if at all. We hope to hear
from Andy today on the Vangelov and Stoyanov depositions.

SBF

From: [e-mail] [mailto:[e-mail]]
Sent: Friday, October 07, 2011 11:27 AM
To: Fabrizio, Steven B; [e-mail]
Cc: Pozza, Duane; Platzer, Luke C; [e-mail]; [e-mail] ;
[e-mail] ; [e-mail] ; [e-mail]
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions

Steve, I called you as a courtesy in response to your urgent message that I
do so as soon as possible. It turned out that you were concerned about
further delays in Disney's missing a court-ordered deadline, a subject that
need not be repeated here. You appreciated that I called you and assured
me the Studios would reciprocate in a similar situation.

You asked about the five depositions and I told you Andy was handling the
issue. You proposed that Hotfile should agree to treat the three as
"managing agents" for the purposes of allowing their depositions and the

studios would agree that it would not be an admission or otherwise
binding. I responded that I doubted our clients would not agree to such a
scheme, and that they did not intend to submit to a deposition that is not
legally required.

Please work with Andy on this issue—as I told you he is in charge and
speaks for us.

From: Fabrizio, Steven B [mailto:[e-mail]]
Sent: Friday, October 07, 2011 6:50 AM
To: Leibnitz, Andrew (21) x4932
Cc: 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]
Subject: 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

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
9

the point of meeting-and-conferring. Stating that "[defendants 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 well 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
Ianakov (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:SFabriziogjenner.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, Janel (28) x4467; "jmunn(&,rascoklock.com';
'[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 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

10

Sent from Blackberry
Original Message
From: Thompson, Rod (27) x4445 [mailto:RThompson0),Ibm.com ]
Sent: Thursday, October 06, 2011 09:12 AM
To: Fabrizio, Steven B
Cc: ALeibnitz(iMm.com <ALeibnitz(fbm.com >; Pozza, Duane; Platzer, Luke C; Anthony P.
Schoenberg <TSchoenberg0,Ibm.com >; Deepak Gupta <DGupta*Ibm.com>: Janel Thamkul
<[e-mail] >; Janet Munn <jmumnibrascoklock.com >; vgurvits..bostonlawRroup.com
<v2urvits(Oostonlawgroup.com >
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" <SFabriziogenner.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 <DPozza0,ienner.com <mailto:DPozzaOjenner.com>>
> Cc: Steven Fabrizio <sfabriziogenner.com <mailto:sfabrizioOjenner.com>>, Luke Platzer
<[e-mail] <mailto:LPlatzer(&jenner.com >>, "Roderick M. Thompson"
<rthompsonRfbm.com <mailto:rthompson0,fbm.com >>, "Anthony P. Schoenberg"
<tschoenbergO,fbm.com <mailto:tschoenbergO,fbm.com >>, Deepak Gupta
<[e-mail] <mailto:[e-mail] >>, Janel Thamkul
<jthamku10,fbm.com <mailto:jthamkul(&,fbm.com >>, Janet Munn
<jmunnOrascokloek.com <mailto:[e-mail] >>,
"vgurvitsObostonlawgroup.com <mailto:[e-mail] >"
<[e-mail] <mailto:[e-mail] >>
> 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
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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, 1 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]
> SFabriziojenner.com
> www.jenner.com<http://www.jenner.com/>

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