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

Filing 174

MEMORANDUM of Law re 165 Plaintiff's MOTION FOR ONE ADDITIONAL EXAMINATION DAY FOR RULE 30(b)(6) DEPOSITION OF DEFENDANT HOTFILE CORPORATION Corrected Memorandum of Law 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 1

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From: Fabrizio, Steven B [mailto:[e-mail]]
Sent: Friday, October 21, 2011 4:57 PM
To: Thompson, Rod (27) x4445
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 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,

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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.)
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 8th 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, lztok Dstr., 1113 Sofia).
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We understand that the deposition will he 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 [nnailto:[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

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