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 3

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

HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

PLAINTIFFS' RULE 30(b)(6) NOTICE OF DEPOSITION OF DEFENDANT HOTFILE
CORP.
PLEASE TAKE NOTICE THAT the deposition upon oral examination of Defendant
Hotfile Corp. ("Defendant" or "Hotfile") will be taken before a certified shorthand reporter by
videoconference at the offices of Kambourov & Partners, 55 Neofit Rilski St., 1000 Sofia,
Bulgaria, commencing at 9:00 a.m. EST (3:00 p.m. ETT) on November 9, 2011, or at such other
time agreed by counsel, pursuant to Fed. R. Civ. P. 30(b)(6), with respect to the matters set forth

below in Schedule A. This deposition will be recorded stenographically and by videotape and
will continue from clay to clay (Saturdays, Sundays and holidays excluded) until completed.
Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Hotfile shall designate
one or more officers, directors, managing agents, or other persons who consent to testify on their
behalf, regarding the topics listed on Schedule A.

DEFINITIONS AND INSTRUCTIONS
1.

The terms "Hotfile" and "Hotfile Website" mean the website accessible at

www.hotfile.com and hotfile.com and encompasses all servers, software, and databases operated
as part of the website.
2.

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."
3.

"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).
4.

The word "document" shall have the meaning of the term "documents or

electronically stored information" in Federal Rule of Civil Procedure 34(a)(1)(A).
5.

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.
6.

The term "Hotfile 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

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"Premium" account with the Hotfile website, and any person who has at any time been a
participant in any of the Hotfile Website's "Affiliate" programs.
7.

The term "Hotfile List" means the list of files that a Hotfile user elects to publish

as a group, by designating that such files belong to a folder.
8.

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

downloaded from the Hotfile Website by any Hotfile user at any time.
9.

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

Hotfile users receive compensation from any Defendant or Hotfile Entity, including the
"Affiliate" program for uploading users and the "Referral" programs "for site owners" and
"Refer a friend" as described at http://www.hotfile.com/affiliate.html.
10.

The term "Content Reference Data" means any electronic data pertaining to the

Content Files (apart from the Content Files themselves) received by Hotfile servers or otherwise
created, maintained, or used by Hotfile or Defendants. "Content Reference Data" shall include:
a. the Hotfile URL associated with each such file;
b. any unique Hotfile-assigned identifier associated such each such file;
c. any identifiers of the uploading Hotfile user associated with each such file
including IP address, username, and Hotfile user identification number;
d. the Hotfile user supplied filename of each such file;
e. the size in bytes of each such file;
f. the date and time each such file was uploaded to Hotfile;
g. the location and/or IP address from which each such file was uploaded to Hotfile;
h. the number of times each such file has been downloaded from Hotfile;
i. the location and/or IP address from which each such file was downloaded from
Hotfile;
the dates and time of each download of each such file from Hotfile;

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k. whether each such file was copied using Hotfile's feature by which an uploading
user may create additional copies within their account, and if so, the Hotfile URL
and any unique identifier associated with each resulting copy;
I. the "status" of each such file on the Hotfile Website, including:
i. whether the file remains active;
ii. whether the file has been blocked from user access, or from Hotfile's
servers;
iii. for files that do not remain active, the reason why the file no longer
remains active, including
1. whether the file was the subject of a copyright owner claim or
notice;
2. whether the Hotfile user deleted the file; or
3. whether the file was blocked, removed, or deleted for inactivity; or
4. whether the file is no longer active for some other reason.
11.

The term "User Data" means all electronic data received by Hotfile servers or

otherwise created, maintained, or used by Hotfile or Defendants reflecting information about
Hotfile users, whether registered or unregistered, including any user account or activity records,
any records of uploads to or downloads from Hotfile by users (including log files), and all
records concerning payments made or owed to users under any of Hotfile's "Affiliate" programs.
12.

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

the persons or entities to which Hotfile makes payments, directly or indirectly, as part of any of
its "Affiliate" programs, including amounts and dates of payments; the URLs of websites
registered by Hotfile users under Hotfile's referral program for site owners; the amounts of
traffic from such websites; the number of downloads by users arriving from such websites; the
numbers of Hotfile Premium subscriptions resulting from traffic from such websites; formulas,
algorithms, or other methods used to calculate those payments; and any data used to calculate the
amounts of such payments or determine their proper recipients.
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SCHEDULE A
I.

For the documents and electronically stored information that Defendant has

already produced, further clarification and information regarding the time zone in which such
data is maintained as well as certain fields of Content Reference, Affiliate, and User Data —
including the meaning behind the fields and the codes or entries in the fields — including but not
limited to fields in the following tables:
a. "actiondat," including but not limited to "addtraffic," "requestcode,"
"suspenduser," and "deleteuser";
b. "dailydownload," including but not limited to "title" and the counts associated
with "free," "premium," "paidfor," and "cheaterchecks";
c. "payments," including but not limited to the 16 "paymenttype" codes,"
"price_gross," "price_fee," "domain," "rebill," "traffic," and the entries under
"access";
d. "status," including but not limited to the event(s) triggering the assignment of
each status code;
e. "uploaddownloads," including but not limited to the counts associated with
"downloads," "paiddownloads," and "paidfor";
f. "uploads4," including but not limited to the entries for "shal," "md5," "date2,"
"date3," and "child";
g. "userdat," including but not limited to "registerip," "lastip," "referrer,"
"suspended," "isaffiliate," "paymentvalidated," "hotlinkbb"; the 5 different codes
for "paymenttype", and the codes associated with "reseller" and "premium";
11. "users_cowner upload";
i. "userscredit," including but not limited to the 12 "type" codes; and
j. "usertitle."
2.

Defendant's system for collecting, storing, indexing, maintaining, and processing

takedown notices or other requests that are issued outside of the context of a Special

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Rightsholder Accounts ("SRA"), including for example, takedowns received by email or postage
mail, including but not limited to:
a. how such requests are stored, including any database or similar enterprise data
system used to store such requests;
b. the length of time such requests are kept; and
c. where such requests are physically kept.
3.

Any database or electronic records containing data associating files identified in

takedown notices with their uploading Hotfile user.
4.

Any database or electronic records that reflect or explain any adjustments made to

file download counts on account of "cheating with the number of downloads" or a "cheater
checks" association or designation.
5.

Any database or electronic records that identify Hotfile List pages or correlate

Hotfile List pages with the individual files that are listed on Hotfile List pages, or that correlate
individual files with their Hotfile List pages.
6.

Defendant's system for collecting, computing, storing, indexing, or maintaining

any MD5 or SHA-1 hash values related to each file available through the Hotfile website.

Dated: November 2, 2011
By: /s/ Steven B. Fabrizio
Steven B. Fabrizio
JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hoc Vice)
Luke C. Platzer (Pro Hac Vice)

1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
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MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hoc Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

GRAY-ROBINSON, P.A.
Karen L. Stetson
1221 Brickell Avenue
16th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs' and Counterdefendant

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd Day of November, 2011, I served the following
documents on all counsel of record on the attached service list by means of the Court's ECF
System:
Plaintiffs' Rule 30(b)(6) Notice of Deposition of Defendants Hotfile Corp.
By: /s/ Steven B. Fabrizio
Steven B. Fabrizio

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SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-JORDAN

RASCO KLOCK
Janet T. Munn
imunn(i4rascoklock.com
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: 30'5-476-7101
Fax: [phone]

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
rthompson(fbm.com
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
dguptafbm.com
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

Attorney for Defendants Hotfile Corp. and
Anton Titov

Attorneys for 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]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

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