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

Filing 176

REPLY to Response to Motion re 165 Plaintiff's MOTION FOR ONE ADDITIONAL EXAMINATION DAY FOR RULE 30(b)(6) DEPOSITION OF DEFENDANT HOTFILE CORPORATION filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (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.
/
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR ONE
ADDITIONAL EXAMINATION DAY FOR THE RULE 30(b)(6) DEPOSITION OF
HOTFILE CORPORATION
Defendants’ opposition goes to great lengths to distract from the true facts:
1. Plaintiffs are not seeking four days to depose Anton Titov. Plaintiffs are seeking a
single additional day (i.e., two days total) to depose defendant Hotfile Corporation on issues
related to the main copyright claims and defendants’ excessive affirmative defenses. Plaintiffs
also have noticed the deposition of defendant Anton Titov in his individual capacity. Plaintiffs

are not seeking additional time beyond the presumptive seven hours for the Titov deposition.
Separately, counterclaim defendant Warner has noticed a deposition of counterclaim plaintiff
Hotfile Corporation on issues related exclusively to Hotfile’s counterclaim against Warner, with
which no other party (plaintiff or defendant) has any involvement. Warner does not seek any
additional time for that deposition. These three separate depositions cover different issues:
o Plaintiffs’ deposition of Hotfile Corporation will address the main copyright claims,
which involve three distinct theories of secondary copyright liability. It will also cover
defendants’ DMCA defense, which itself involves seven distinct issues. It will also have
to cover each of defendants’ 12 other affirmative defenses. See Mot. at 4-5.
o Plaintiffs’ deposition of Mr. Titov, in large part, will cover issues related to his personal
liability as a defendant in his own right. The legal standard for holding a corporate
officer liable for copyright infringement committed through the corporation involves
distinct legal and factual issues. The single case defendants cite (Opp. at 13) for the
proposition that plaintiffs should get just one day total for the depositions of both Hotfile
and Mr. Titov in fact held the exact opposite. In granting the additional deposition time
requested, the Sabre court held that “the 30(b)(6) deposition of a[] witness is a separate
deposition from the deposition of that same person as an individual witness and is
presumptively subject to a separate, independent seven-hour time limit.” Sabre v. First
Dominion Capital, LLC, No. 01CIV2145BSJHBP, 2001 WL 1590544, at *2 (S.D.N.Y.
Dec. 12, 2001) (emphasis added); see also id. at *1 (“A deposition pursuant to Rule
30(b)(6) is substantially different from a witness's deposition as an individual.”).
Moreover, in Sabre, the individual was not a defendant, and the examinations of the
individual and corporation were to cover the identical issues. See id. at *2. Here, neither

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is the case: Mr. Titov is a defendant, and the issues regarding his personal liability are
distinct. This district’s own precedent confirms that the Rule 30(b)(6) deposition of
Hotfile and the individual deposition of Mr. Titov are subject to independent time
limitations. Provide Commerce, Inc. v. Preferred Commerce, Inc., No. 07-80185 Civ,
2008 WL 360588, at *3 (S.D. Fla. Feb.8, 2008); DHL Express (USA), Inc. v. Express
Save Industries Inc., No. 09-60276, 2009 WL 3418148, at *4 (S.D. Fla. Oct. 19, 2009).1
o Warner’s separate deposition of Hotfile will cover Hotfile’s counterclaim under the
Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(f), an independent cause
of action that does not share facts or legal issues with any other claim or defense in the
case. Warner will be taking a single fact deposition in defense of the counterclaim, the
Rule 30(b)(6) deposition of Hotfile at issue in this motion, which Hotfile is trying to
limit.2 It would be grossly unfair to counterclaim defendant Warner, as well as to the
copyright plaintiffs, to require Warner to combine its Rule 30(b)(6) counterclaim
deposition of Hotfile with plaintiffs’ Rule 30(b)(6) deposition. Dow Chemical Co. v.
Reinhard, No. 07-12012-BC, 2008 WL 1735295, at *4 (E.D. Mi. Apr. 14, 2008) (parties
must be entitled to depositions on counterclaims).
Thus, defendants’ entire premise that plaintiffs are seeking four days to examine Mr. Titov on
the same issues is false. Plaintiffs seek a single additional day for their Rule 30(b)(6) deposition
of Hotfile on the main copyright claims and defenses.
1

It is defendants (Opp. at 13) who misconstrue Arista Records LLC v. Lime Group LLC, No. 06Civ.-5936, 2008 WL 1752254 at *3 (S.D.N.Y. Apr. 16, 2008). There, in a directly comparable
online infringement case, the COO was ordered deposed for 2.5 days. That was in addition to
separate depositions of the CEO and the corporation itself through Rule 30(b)(6) depositions.
Plaintiffs here are seeking far less time.
2

In contrast, on its counterclaim, Hotfile already has taken Warner’s Rule 30(b)(6) deposition,
noticed a Warner employee individually, and demanded depositions of two additional Warner
employees.
3

2. Language barriers – whether a translator is to be used or not – is a classic reason to
allow additional deposition time. Marlborough Holdings Group, Ltd. v. Pliske Marine, Inc., No.
08-62075-CIV, 2010 WL 4614704, at *1 (S.D. Fla. Nov. 5, 2010) (where English was the
deponent’s second language, granting additional examination day even if translator will only be
used “intermittently”) (emphasis added). Here, as defendants have insisted repeatedly, English is
not Mr. Titov’s second language, it is his third language, behind Russian and Bulgarian.
Defendants strain in arguing the language barrier does not, standing alone, compel additional
deposition time.
Well before the current dispute, defendants’ counsel made plain that if plaintiffs
proceeded with a deposition of Mr. Titov without a translator it would be at their own risk. See
infra n.3. As late as October 20, 2011, in the course of the present dispute, defendants’ counsel
was still playing games with whether Mr. Titov required a translator:
please know that we have not yet confirmed whether Mr. Titov will require a
Russian translator, given that he has never before participated in legal proceedings
such as this deposition in any language, much less his third language.
October 20, 2011, Email from Leibnitz to Fabrizio (emphasis added). Only after plaintiffs cited
the language barrier as a reason for additional deposition time did defendants’ counsel, for the
first time in ten months, announce that “[a]fter conferring further, Mr. Titov has agreed to
conduct his deposition in English.” Opp., Ex. 2.3 Even then, counsel reiterated that “English is
[Mr. Titov’s] third language.” Id.
3

Defendants’ selective quotation from an email from plaintiffs’ counsel (Opp. at 15) is
misleading. The full quote, together with the immediately following sentence, is as follows:
“Yes, for weeks — ever since we told you we wanted more time, in part, because
of the language barrier — you have been telling us Titov will testify without a
translator. But at every instance prior to that moment, you have been saying we
proceed at our own risk if we do not have a translator for Titov.”
Opp., Ex. 12 (emphasis added).
4

The recent ESI deposition of Mr. Titov dramatically emphasized the difficulties posed by
the language barrier. Again, defendants’ selective quotation from the deposition transcript is
misleading. Plaintiffs’ counsel refrained from using the translator not because the language
barrier was not a problem, but because plaintiffs were given only two hours to ask questions
about Hotfile’s databases (information that plaintiffs’ experts needed for expert reports due the
next day). There simply was no time for translations and, importantly, plaintiffs required the
testimony more to understand the databases than to establish facts for evidentiary purposes.
However, the language barrier was a significant issue. The court reporter pleaded, on the
record, for the parties to use the translator because the language barrier made it “difficult” and
she was “concerned” about her ability to accurately transcribe Mr. Titov’s answers. Titov dep.
(rough transcript) at 23:4-6. On no less that nineteen (19) separate occasions, in a two hour
deposition, the court reporter could not record Mr. Titov’s answers and noted in the transcript
“difficulty understanding the witness’s answer due to language barrier.” Id. at 3:10-11
(emphasis added); see also id. at 6:9-10 (“difficulty understanding the witness’s answer due to
language barrier”), 11:10-11 (same), 12:12-13 (same), 13:13-14 (same), 17:8-9 (same), 18:5-6
(same), 24:23-24 (same), 26:12-13 (same), 27:2-3 (same), 28:23-24 (same), 30:10-11 (same),
31:3-4 (same), 35:8-9 (same), 37:8-9 (same), 56:21-22 (same), 57:7-8 (same), 64:15-16 (same),
67:20-12 (same).4 And that does not include the numerous other times the court reporter had to
stop the proceeding because she did not understand Mr. Titov and had to have him repeat his

4

Even with the benefit of an audio recording and the luxury of time, in the final transcript, the
court reporter still had to add the notation “difficulty understanding the witness’s answer due to
language barrier” several times. Titov dep. at 9:20-12, 15:5-6, 33:13-14, 40:4-5, 73:9-10.
(Plaintiffs are not providing the Court with the cited transcript pages because defendants
designated the transcript “Highly Confidential” under the Protective Order. However, if
defendants dispute the accuracy of the citations, or if the Court would like to see them, plaintiffs
will file the transcript under seal.)

5

answer just so she could transcribe it. Gibbs v. American School for the Deaf, No. 3:05cv563
(MRK), 2007 WL 1079992, at *1 (D. Conn. Apr. 4, 2007) (granting additional time where
deposition was “slowed down and interrupted” because of need for translation).
3. Independent of the language barrier issues, one additional day for the Rule 30(b)(6)
deposition of Hotfile is warranted. The Federal Rules and this Court’s precedents make clear
that leave for additional deposition time should be freely given. E.g., Fed. R. Civ. P. 30(d)
advisory committee’s note to 2000 amendments (“For purposes of this durational limit, the
deposition of each person designated under Rule 30(b)(6) should be considered a separate
deposition.”); Marlborough, 2010 WL 4614704, at *1; Dunkin’ Donuts Inc. v. Mary’s Donuts,
Inc., 206 F.R.D. 518, 522 (S.D. Fla. 2002); Mot. at 3. Additional time is amply justified here:
o The claims and defenses raise a large number of issues. See Mot. at 4-5.
o Much of the examination will involve highly technical subject matter. See Mot. at 5-6.5
o There are few other witnesses besides Hotfile and Mr. Titov. See Mot. at 3-4. Including
the Hotfile and Titov depositions at issue in this motion, plaintiffs have noticed a total of
four (4) depositions for their entire affirmative copyright case. In contrast, defendants
have noticed no less than nine (9).6

5

Contrary to defendant’s argument, the Court has not held that the discovery into details of
technical issues is irrelevant. Opp. at 13-14. In denying plaintiffs’ motion for production of
source code, the Court in fact noted that plaintiffs could ask Hotfile to “describe” its technical
operations. Order on Motion to Compel (Dkt #128) at 3.
6

While playing semantics games as to their Bulgarian contract-employees, defendants have
directed one of their contract-employees to be available for interviews with defendants’ expert,
who is in fact relying on information from an employee whom defendants refuse to make
available to plaintiffs. And while the Hague Convention is a theoretical option, even if a
deposition were to be ordered, under Bulgarian rules (as defendants well know), questioning is
limited and is done primarily by the court, not counsel. See Response Bulgaria to Convention of
18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ¶¶ 42, 44, 63
(2008), available at
http://www.hcch.net/index_en.php?act=publications.details&pid=4646&dtid=33.
6

o Because of Mr. Titov’s claimed passport issues, plaintiffs have to incur substantial
additional expense to travel to Sofia, Bulgaria. See Mot. at 7. Despite defendants’
optimism, the multiple technical problems on the Bulgarian side during the recent ESI
deposition confirm that a video deposition is not a reasonable alternative, which leaves
plaintiffs with no effective recourse to seek additional time after-the-fact.
o The case raises copyright issues of great importance and involves potential damages that
are likely to be in the tens or hundreds of millions of dollars. See Fed. R. Civ. Pro.
26(b)(2)(c)(iii) (considering, inter alia, “the amount in controversy” and “the importance
of the issues at stake”); Arista Records LLC v. Lime Group LLC, No. 06-Civ.-5936, 2008
WL 1752254 at *2 (S.D.N.Y. Apr. 16, 2008) (granting additional deposition time, noting
that “this is a case in which the stakes are high, both sides have significant resources, and
[the deponent] is apparently a central figure in the case”).
4. This case has been proceeding on a fast track and defendants have produced the bulk
of their documents, many of which are in Russian or Bulgarian, only in the past few months.
Plaintiffs are still reviewing documents, and expect to be analyzing and selecting documents
right up to the start of (and during the course of) the Hotfile and Titov depositions. It is simply
not practical for plaintiffs to have to provide defendants with their deposition exhibits (e.g.,
translated Bulgarian documents) in advance of the deposition. Additionally, doing so would
encroach on plaintiffs’ work product – which is of course why defendants make the demand.7

7

Defendants citation to Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 439
(E.D.N.Y. 2011), Opp. at 7-8, does not remotely support defendants’ demand. That case would
require defendants as the responding party – not plaintiffs – to turn over translations of produced
documents. Id. at 439 (“if a responding party to discovery has translations to the foreign
documents produced, then it must produce the translated documents as well” (emphasis added));
id. at 441 (“when a party responds to an interrogatory by producing documents written in a
foreign language, Rule 33(d) requires the responding party to provide a translation of those
7

Plaintiffs provided defendants with extremely detailed Rule 30(b)(6) topics; this can hardly be
considered deposition by ambush. Plaintiffs, however, are entitled to Mr. Titov’s candid and
contemporaneous responses to their questions about documents – not answers that have been
rehearsed and practiced with counsel. This is precisely why rules have developed to prohibit
coaching during a deposition and limiting conferences with counsel while a question is pending.
Developers Sur. and Indem. Co. v. Harding Village, Ltd., No. 06-21267-CIV, 2007 WL
2021939, at *5 (S.D. Fla. July 11, 2007) (“statements which have the effect of coaching the
witness” during a deposition are prohibited). Indeed, it is one of the reasons why counsel take
depositions rather than conducting all discovery through written interrogatories.

CONCLUSION
For the foregoing reasons, and those in plaintiffs’ opening memorandum, the motion for
one additional deposition day for the deposition of defendant Hotfile Corporation should be
granted.
DATED: November 28, 2011

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

documents (emphasis added)). If defendants in fact have English translations of any documents
they produced only in Russian or Bulgarian, defendants should have produced those translations
long ago (and the Court should order production if defendants refuse). Moreover, defendants do
not seek copies of translated documents but rather, seek documents plaintiffs may use as exhibits
in these depositions. That selection of documents reflects the most sensitive “mental
impressions” of counsel and is entitled to the highest level of work product protection. In re
Allen, 106 F.3d 582, 608 (4th Cir. 1997); Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th
Cir. 1986).
8

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

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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.
/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 28th day of November, 2011, I served the following document on
all counsel of record on the attached service list via the Court’s CM/ECF filing system:
Plaintiffs’ Reply Memorandum in Support of Motion for One Additional Examination Day
for the Rule 30(b)(6) Deposition of Hotfile Corporation
I further certify that I am admitted to the United States Court for the Southern District of Florida
and certify that this Certificate of Service was executed on this date.
By: /s/ Karen L. Stetson
Karen L. Stetson

1

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

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

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [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

2