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

Filing 172

RESPONSE in Opposition re 164 MOTION to Compel Discovery from Plaintiff and Counter-Defendant Warner Bros. Entertainment Inc. of Warner's Takedown Investigation and Memorandum of Law filed by Warner Bros. Entertainment Inc.. (Attachments: # 1 Affidavit Declaration of Luke Platzer in Support of Warner's Opposition to Motion to Compel, # 2 Exhibit A to Declaration)(Stetson, Karen)

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.
/
DECLARATION OF LUKE C. PLATZER IN SUPPORT OF OPPOSITION OF
WARNER BROS. ENTERTAINMENT INC. TO HOTFILE CORP.’S MOTION TO
COMPEL DISCOVERY FROM PLAINTIFF AND COUNTERDEFENDANT WARNER
BROS. ENTERTAINMENT INC. OF WARNER’S TAKEDOWN INVESTIGATIONS
I, LUKE C. PLATZER, hereby declare as follows:
1.

I am a partner at the law firm of Jenner & Block LLP, and counsel to the plaintiffs

Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios
Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment Inc.

(“Warner”) in this action (collectively “Plaintiffs”). The statements made in this declaration are
based on my personal knowledge including on information provided to me by colleagues or other
personnel working under my supervision on this case.
2.

Attached hereto as Exhibit A is a true and correct copy of excerpts from the

transcript of the October 12, 2011 deposition of David Kaplan, the 30(b)(6) representative for
Warner in this action. Some lines have been redacted due to the protective order in this case.
3.

The Warner investigation that is the subject of Hotfile’s motion to compel

postdates the Warner takedown notices of which Hotfile complains in its Counterclaim. Hotfile
attached to its Second Amended Counterclaim a list of all the takedown notices it claims that
Warner sent wrongfully. Warner produced to Hotfile, in this action, its records regarding all of
the takedown notices it sent to Hotfile. Those records show that the takedown notices claimed as
wrongful by Hotfile were mostly sent early in 2011, and were all sent by the first week of August
2011. This is unsurprising, as Mr. Kaplan testified at his deposition that Warner ceased sending
takedown notices by means of its internal antipiracy system when it began, on or around August
15, 2011, the internal investigation that is the subject of Hotfile’s motion to compel.
4.

Warner withheld as privileged a report containing analysis of Warner’s past

takedown notices to Hotfile. The report bears electronic metadata indicating that it was not
created until September 5, 2011, further confirming that Warner’s investigation postdated the
notices that form the basis of Hotfile’s Counterclaim.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 25th day of November, 2011 in Longmeadow, Massachusetts.

Luke C. Platzer