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 7

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

Leibnitz, Andrew (21) x4932
Friday, November 18, 2011 4:40 PM
Fabrizio, Steven B; Pozza, Duane; Thompson, Rod (27) x4445; Schoenberg, Tony (28) x4963
Platzer, Luke C; Janet Munn
RE: Disney Enterprises, Inc. v. Hotfile Corp. - Plaintiffs' motion for extended time to depose
Hotfile/Titov

Steve:
I am not trying to depose your 30(b)(6) witnesses for four days. You are. As you know,
since you cited this authority in your motion to extend the time of Hotfile's deposition,
courts consider whether the deposing party has made its documents available to the 30(b)(6)
witness prior to the deposition in deciding whether additional time is warranted. This email string merely confirms that Plaintiffs will not be providing in advance of the
depositions either English translations or Bulgarian originals of documents to be discussed
in deposition, thereby undermining at least two of the three reasons set forth in Plaintiffs'
motion. Please let me know if Plaintiffs change their position.
Regards,
ANDY
N. Andrew Leibnitz
Attorney at Law
Farella Braun + Martel LLP
415.954.4932

Original Message
From: Fabrizio, Steven B [mailto:[e-mail]]
Sent: Friday, November 18, 2011 4:22 PM
To: Leibnitz, Andrew (21) x4932; Pozza, Duane; Thompson, Rod (27) x4445; Schoenberg, Tony
(28) x4963
Cc: Platzer, Luke C; Janet Munn
Subject: Re: Disney Enterprises, Inc. v. Hotfile Corp. - Plaintiffs' motion for extended time
to depose Hotfile/Titov
Andy - If you want to put words in my mouth in your attempt to create an exhibit for you
opposition, please make it a full and accurate commemoration. I told you that there were two
reasons; they are independent and equally make it impractical for us to give you all our
deposition documents in advance. As you note, one reason is that it unduly demands an
advance preview of all our work product and planning for the depositions. We have given a
very detailed 30(b)(6) notice so are clearly not trying to hide the ball. However, as every
litigant is, we are entitled to secure the witnesses' candid and extemporaneous answers to
our questions. As history teaches us, given enough advance preparation, defendants in the
position of Hotfile can and will attempt to create favorable "stories" to explain away
incriminating documents, regardless of the real facts. Secondly, and also a full answer to
your request, we simply will not be prepared sufficiently in advance to be able to send you
our deposition documents. As you know, the parties are working around the clock on multiple
litigation activities. We are still working to finish our first level review of the
documents. Right now I have not even contemplated any of the documents on which I may want
to examine Mr. Titov. Because of all else going on in this case and others, there is no
realistic possibility that I will have finalized my document selection and preparation until
just before the deposition. So, even if I were inclined to do so, I could not accommodate
your request.
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On the other hand, I'd be happy to extend you the same offer regarding defendants'
depositions of plaintiffs and their employees. It would expedite the progress of the
depositions if the witnesses could review and be prepared to answer questions as to all of
the documents defendants plan to mark as exhibits. Accordingly, if you are such a proponent
of this methodology, please forward all your documents as soon as possible and we will ensure
that our witnesses have studied them and are prepared to move apace at their depositions.
I'll understand if you decline, since there in not a litigator in the world who would find my
offer — or yours — to be made for anything but tactical reasons.
SBF

From: Andrew Leibnitz <[e-mail] <mailto:[e-mail] »
Date: Fri, 18 Nov 2011 11:29:06 -0600
To: Duane Pozza <[e-mail] <mailto:[e-mail] », "Roderick M. Thompson"
<[e-mail] <mailto:[e-mail] », "Anthony P. Schoenberg"
<[e-mail] <mailto:[e-mail] »
Cc: Steven Fabrizio <[e-mail] <mailto:[e-mail] », Luke Platzer
<[e-mail] <mailto:[e-mail] », Janet Munn
<[e-mail] <mailto:[e-mail] »
Subject: Re: Disney Enterprises, Inc. v. Hotfile Corp. - Plaintiffs' motion for extended time
to depose Hotfile/Titov
Duane and Steve:
Plaintiffs previously stated that they will not provide advance copies of the documents upon
which it will examine Hotfile and Mr. Titov (or any other witness), on grounds that
Plaintiffs do not wish to receive prepared responses to questions -- despite the breadth of
Plaintiffs 30(b)(6) notice to Hotfile. This email commemorates Plaintiffs' position. Please
let us know immediately if Plaintiffs will reconsider. We also understand that Plaintiffs
will not provide English translations of Bulgarian documents in advance of any deposition.
Please let this email serve as commemoration of our request for advance copies of all such
documents mentioned above so that we may expedite the depositions in Bulgaria.
Regards,
Andy
From: Pozza, Duane [mailto:[e-mail]]
Sent: Friday, November 18, 2011 07:57 AM
To: Thompson, Rod (27) x4445; Leibnitz, Andrew (21) x4932; Schoenberg, Tony (28) x4963
Cc: Fabrizio, Steven B <[e-mail] <mailto:[e-mail] »; Platzer, Luke C
<[e-mail] <mailto:[e-mail] »
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. - deposition notices
Rod, in light of the time constraints and our request for expedited briefing on the Motion
for One Additional Examination Day for the 30(b)(6) of Hotfile Corporation (Dkt # 165),
please let us know whether you intend to respond to the motion (or that request) on or before
November 22nd.
Thanks,
Duane
From: [e-mail] <mailto:[e-mail] > [mailto:[e-mail]]
Sent: Wednesday, November 16, 2011 7:09 PM
To: Pozza, Duane; [e-mail] <mailto:[e-mail] >;
[e-mail]:[e-mail] >; [e-mail]:[e-mail] ;
[e-mail]:[e-mail] >; [e-mail]:[e-mail];
[e-mail] <mailto:[e-mail] >
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Cc: Fabrizio, Steven B; Platzer, Luke C
Subject: RE: Disney Enterprises, Inc. v. Hotfile Corp. - deposition notices
Duane, notwithstanding the remarkable over-breadth and unreasonableness of the 61 additional
Rule 30b6 topics addressed to Hotfile Corp., these three new notices do not alter our view of
the number of hours to which the Plaintiffs are entitled for the depositions under the
Federal Rules.
To reiterate what we offered almost two weeks ago, Defendants will make available three
witnesses in their individual capacities and in response to the now three Rule 30(b)(6)
notices directed to Hotfile as follows:
1. A witnesses tomorrow for up to two hours by video-conference, on shortened time to
accommodate Plaintiffs' special request, to address the "ESI Deposition" Rule 30b6 topics.
(As a compromise, if Plaintiffs agree to the proposal below on the total hours, we would
agree that these two hours are in addition to the week in Sophia; if there is not agreement
and a motion is filed these hours will be subtracted to reduce the overall time with Mr.
Titov as the Hotfile Rule 30(b)(6) witness.)
2. Five, seven-hour days of deposition in Sofia:
1. December 5 and 6 Mr. Titov (no translation) 2. December 7 and 8 ( 122 day) Mr. Vangelov
(some translation of questions may be necessary.) 3. December 8 ( 122 day) and 9 Mr. Stoyanov
(translation of questions and most likely answers.)
3. While it is contemplated that Mr. Titov will cover most of the 61 topics in the new Rule
30b6 deposition notices, to the extent they are not objectionable, it is possible that Mr.
Vangelov and/or Mr. Stoyanov may be designated for some topic(s). (Despite our repeated
requests that you provide the topics sooner, we just received the notices last night and are
still evaluating them.) Notwithstanding how the topics may be divided up, the time
limitations for each witness remain—that is Mr. Titov will provide no more than a total of 14
hours of testimony no matter how topics he may be designated on and Mr. Vangelov will provide
not more than 10 and 122 hours, again regardless of whether he is designated for four topics
or none.
Let me or Andy know if you have any questions.
Rod
From: Pozza, Duane [mailto:[e-mail]]
Sent: Tuesday, November 15, 2011 6:53 PM
To: Thompson, Rod (27) x4445; Leibnitz, Andrew (21) x4932; Schoenberg, Tony (28) x4963;
Gupta, Deepak (22) x4419; Thamkul, Janel (28) x4467;
[e-mail] <mailto:[e-mail] >;
[e-mail] <mailto:[e-mail] >
Cc: Fabrizio, Steven B; Platzer, Luke C
Subject: Disney Enterprises, Inc. v. Hotfile Corp. - deposition notices
Counsel,
Please see attached deposition notices. Rod, please review these, and let us know if they
alter your objection to the plaintiffs having 2 days for Hotfile Corp., in addition to 1 day
for Warner's deposition on the counterclaims, and one day for Titov's individual deposition.
If so, please let us know by tomorrow morning. We are available for a call if necessary.
Regards,
Duane
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Duane Pozza
lenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
Tel [phone]
Fax [phone]
[e-mail]:[e-mail] >
www.jenner.com <http://www.jenner.com/>

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