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 4
Leibnitz, Andrew (21) x4932
From:
Sent:
To:
Cc:
Subject:
Fabrizio, Steven B [SFabrizio@jennercorn]
Friday, November 04, 2011 9:00 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; jmunn@rascoklock.com ;
vgurvits@bostonlawgroup.com
RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Rod and Andy — Duane and I are free to talk about the Titov, Stoyanov and Vangelov
depositions at any time today that you would like. Just pick a time and we will make ourselves
available. We simply do not have time for incessant back-and-forth on the same issues. From
the tenor of Andy's emails with Duane and my conversations with Rod, it seems that
defendants are not going to agree to any additional time for these depositions. We've
provided the legal authority that plainly says additional time should be liberally given. We've
explained ad nauseam the factual basis for our requests. Both of you keep saying no, but
continue to say we are not at an impasse. We believe we have gone above and beyond any
meet-and-confer requirements. We will make one last effort to resolve the issues on a call
today. Absent some resolution today, we are going to seek the Court's intervention on
Monday.
Please advise as to the time that works.
SBF
From: ALeibnitz@fbm.com [mailto:ALeibnitz@fbm.com]
Sent: Friday, November 04, 2011 3:52 AM
To: Pozza, Duane
Cc: Fabrizio, Steven B; Platzer, Luke C; RThompson@fbm.com ; TSchoenberg@fbm.com ; DGupta@fbm.com ;
JThamkul@fbm.com ; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Duane:
You have never explained the need for the proposed stipulation regarding the depositions of Messrs. Stoyanov
and Vangelov. It is difficult for me to undertake to provide you with a redline when I do not understand what
purpose the document serves, or why Hotfile should sign it. Messrs. Stoyanov and Vangelov will appear in Sofia
for deposition pursuant to the Federal Rules subject to penalty of perjury under the laws of the United States of
America.
I also do not understand your insistence on increasing by 50% the time taken for Mr. Vangelov's deposition
beyond the presumptive limit provided by the Federal Rules. You initially proposed 1.5 days for Mr. Vangelov's
deposition, stating that you were doubling the necessary time "to compensate for the pace of translation." I
then stated that Mr. Vangelov would waive translation, whereupon you doubled your initial demand for his time
so that his deposition could again fill 1.5 days — as if seeking to punish Mr. Vangelov for his cooperation. It is as
if Plaintiffs labor under predetermined orders to interrogate Mr. Vangelov in a language foreign to him for 50%
longer than presumptively allowed. You gave no explanation for reflexively doubling his deposition's duration.
1
Do Plaintiffs expect to extend his deposition duration any further, or is 1.5 days the outer limit (evidently
irrespective of translation)?
Regarding Mr. Stoyanov, we remain willing to permit additional time if needed to depose the witness in any
capacity. The starting point of that discussion must he that Plaintiffs will under no circumstances again renege
on the 10.5 hour (or 1.5 day) limit for this single translated deposition, which Plaintiffs have now identified as
sufficient at least four times.
In hopes of resolving this matter, as you know, I have been asking for articulation of the Rule 30(b)(6) topics for
weeks. Please send us those topics which you described as "imminent" weeks ago so that we may rationalize
deposition scheduling in full view of all relevant facts.
Regards,
ANDY
N. Andrew Leibnitz
Attorney at Law
Farella Braun + Martel LLP
'415.954.4932
From: Pozza, Duane [mailto:DPozza@jenner.com]
Sent: Tuesday, November 01, 2011 7:15 PM
To: Leibnitz, Andrew (21) x4932
Cc: Fabrizio, Steven B; Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963; Gupta,
Deepak (22) x4419; Thamkul, Jane! (28) x4467; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Andy, we need to move forward on this stipulation on the depositions of Mr. Vangelov and Mr. Stoyanov. Do
you have a redline to provide? And what is the response on the proposal for an extra day of depositions
between the two of them? You've not responded to my email of almost a week ago. Given the number of
documents, each individual's level of involvement in Hotfile, the distance to travel, and the language issues, a
extra half-day for each should hardly be an issue. Please let me know as soon as you can.
Regards,
Duane
From: Pozza, Duane
Sent: Wednesday, October 26, 2011 10:35 PM
To: ALeibnitz@fbm.com
Cc: Fabrizio, Steven B; Platzer, Luke C; RThompson@fbm.com ; TSchoenberg@fbm.com ; DGupta@fbm.com ;
JThamkul@fbm.com ; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Andy, I don't know what game is being played on counting the number of documents, but Mr. Vangelov appears
on at least 500 emails in his own custodial production. Should I not assume that you're aware of all his email
addresses (including those using the name "Nasko") and of his extensive involvement in directing Hotfile's
operations? Likewise, Mr. Stoyanov appears on at least 400 emails (not including attachments), and is also
clearly participating in directing Hotfile's operations.
I appreciate that Mr. Vangelov has now decided that a deposition in English is acceptable. But it's in everyone's
interest to minimize the number of trips to Bulgaria for depositions. The fact that most of his emails are in
2
Bulgarian is itself going to cause delay. While we can try to complete the deposition on one day, we should
block off an day-and-a-half. The same goes for Mr. Stoyanov.
As for the stipulation, if you have any concerns with it, please send me a redline. It sounds like you're fine with
all of its provisions, so what is the issue? Please let me know as soon as possible, so we can minimize travel
costs on all sides.
Thanks,
Duane
From: ALeibnitz@fbm.com [mailto:ALeibnitz@fbm.com]
Sent: Wednesday, October 26, 2011 8:17 PM
To: Pozza, Duane
Cc: Fabrizio, Steven B; Platzer, Luke C; RThompson@fbm.com ; TSchoenberg@fbm.com ; DGupta@fbm.com ;
JTharnkul@fbm.com ; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. -- Plaintiffs' Notice of Depositions
Duane:
Plaintiffs should not seek 1.5 day depositions with each of Messrs. Vangelov and Stoyanov. Updated for recent
productions, the total number of e-mails in which Atanas Vangelov has appeared in the "to," "from," or "cc"
field is seventy-two (72). Accordingly, a 7-hour deposition would permit six minutes of examination for every
such e-mail he has produced in the case. While he has indeed produced over a thousand documents, these
would fit in a single box. Additionally, merely being a shareholder does not justify deposing Mr. Vangelov for 1.5
hours, much less 1.5 days. Finally, Hotfile Corporation created powers of attorney for all three of the
shareholders at its outset; the discussion of those documents will not be lengthy. The facts regarding Rumen
Stoyanov are similar.
You state below that Plaintiffs would be permitted by law to double the 7-hour deposition duration given the
degree to which translation slows depositions. In conferring further with Mr. Vangelov, he has agreed to
conduct the deposition in English. Thus, you should be able to conclude Mr. Vangelov's deposition in threequarters of a day. This will easily permit Plaintiffs to complete both depositions in two days. As stated
previously, we remain willing to start early and stay late to complete Mr. Stoyanov's deposition if needed to
fairly examine the witness. If the deposition of Mr. Stoyanov proceeds to the end of its seventh hour, we will
not interrupt you to leave, but rather will provide reasonable latitude to fairly examine the witness; however,
Plaintiffs' goal should be to complete the deposition in seven hours pursuant to Rule 30. Merely stating that Mr.
Stoyanov has produced over a thousand documents, holds shares in Hotfile Corporation, and was named as a
recipient of a power of attorney at the outset of the corporation hardly justifies a deposition exceeding ten
hours, as you propose.
Regarding the proposed stipulation, we are agreed that the deposition will proceed in Bulgaria pursuant to the
Federal Rules of Civil Procedure and given under penalty of perjury under the laws of the United States and
conducted by U.S. counsel. However, I have never seen a stipulation executed to that effect, much less
purporting to waive any rights as to admissibility.
Regards,
ANDY
N. Andrew Leibnitz
Attorney at Law
Farella Braun + Martel LLP
415.954.4932
3
From: Pozza, Duane [mailto:DPozza@jenner.corn]
Sent: Friday, October 21, 2011 4:40 PM
To: Leibnitz, Andrew (21) x4932
Cc: Fabrizio, Steven B; Platzer, Luke C; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963; Gupta,
Deepak (22) x4419; Thamkul, Janel (28) x4467; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
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.
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.)
Let me know about the additional day, and which day would work best, and we can modify the stipulation
accordingly.
Regards,
Duane
From: ALeibnitz@fbm.com [mailto:ALeibnitz@fbm.corn]
Sent: Friday, October 21, 2011 3:47 PM
To: Pozza, Duane
Cc: Fabrizio, Steven B; Platzer, Luke C; RThompson@fbm.com ; TSchoenberg@fbm.com ; DGupta@fbm.com ;
JThamkul@fbm.com ; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com
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
4
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
Farella Braun + Martel LLP
415.954.4932
From: Pozza, Duane [mailto:DPozza@jenner.com]
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; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com ; 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
5
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; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com ; 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 5t?
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:ALeibnitz@fbm.com]
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, Janel (28) x4467; jmunn@rascoklock.com ; vgurvits@bostonlawgroup.com ; 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
6
On Oct 17, 2011, at 9:29 AM, "Pozza, Duane" 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: ALeibnitz(@fbm.com [mailto:ALeibnitz@fbm.com]
Sent: Thursday, October 13, 2011 1:04 PM
To: Fabrizio, Steven B
Cc: Pozza, Duane; Platzer, Luke C; RThompson@fbm.com ; TSchoenberg@fbm.com ; DGupta@fbm.com ;
Iihamkul(afbm.com ; imunn©rascoklock.corn; vgurvits@bostonlawgroup.com
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
7
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
Farella Braun + Martel LLP
415.954.4932
From: Fabrizio, Steven B [mailto:SFabrizio@jenner.com]
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, Janet
(28) x4467; imunrarascoklock.com ; ygurvitsObostonlawgroup.com
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
8
From: RThompsonOfbm.com [mailto:RThompson@fbm.com]
Sent: Friday, October 07, 2011 11:27 AM
To: Fabrizio, Steven B; ALeibnitz@fbm.com
Cc: Pozza, Duane; Platzer, Luke C; TSchoenberg@fbm.com ; DGubtafbm.com ; JThamkul@fbm.com ;
jmunn@rascoklock.com ; vgurvits©bostonlawgroup.com
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:SFabrizio@jenner.com]
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; jmunn@rascoklock.com ; vgurvits(abostonlawgroup.com
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: ALeibnitz@fbm.com [mailto:ALeibnitz@fbm.com]
Sent: Friday, October 07, 2011 9:18 AM
To: Fabrizio, Steven B
Cc: Pozza, Duane; Platzer, Luke C; RThomoson@fbm.corn; TSchoenberg@fbm.com ;
DGuptaPfbm.com ; JThamkul@fbm.com ; jmunn@rascoklock.com ; ygurvits@bostonlawgrouo.com
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 openmindedness 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:SFabrizioOjenner.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; 'imunn@rascoklock.com 1;
'vgurvits(iD,bostonlawgroup.com'
11
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
Sent from Blackberry
Original Message
From: Thompson, Rod (27) x4445 [mailto:RThompson@fbm.com]
Sent: Thursday, October 06, 2011 09:12 AM
To: Fabrizio, Steven B
Cc: ALeibnitzP,fbm.com ; Pozza, Duane; Platzer, Luke C; Anthony P. Schoenberg
; Deepak Gupta ; Janel Thamkul ;
Janet Munn ; vgurvits@bostonlawgroup.corn
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" 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
12
> From: Andrew Leibnitz >
> Date: Thu, 6 Oct 2011 08:27:18 -0500
> To: Duane Pozza >
> Cc: Steven Fabrizio >, Luke Platzer
>, "Roderick M. Thompson"
>, "Anthony P. Schoenberg"
>, Deepak Gupta
>, Janel Thamkul
>, Janet Munn
>,
"v
ts (1boston law group .com"
>
> 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
13
> Jenner & Block LLP
> 1099 New York Avenue, N.W.
> Suite 900
> Washington, DC 20001-4412
> Tel (202) 639-6040
> Fax (202) 661-4823
> SFabriziWjenner.com
> wwwjenner.com
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