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

Filing 181

NOTICE by Warner Bros. Entertainment Inc. re 180 MOTION to Compel the Production of Titov Deposition Ex. 27 [REDACTED] >NOTICE OF FILING DECLARATION OF LUKE PLATZER IN SUPPORT OF MOTION TO COMPEL (Attachments: # 1 Affidavit Declaration of Luke Platzer in Support of Warner's Motion to Compel (DE 180), # 2 Exhibit A (PUBLIC VERSION), # 3 Exhibit B, # 4 Exhibit C (PUBLIC VERSION))(Stetson, Karen)

EXHIBIT B

From:
Sent:
To:
Cc:
Subject:

Fabrizio, Steven B
Monday, December 05, 2011 4:34 PM
[e-mail]; Pozza, Duane; Platzer, Luke C
Anthony P. Schoenberg; Andrew Leibnitz; [e-mail];
[e-mail]; Janet Munn
Re: document clawback

It is very late and I do not have time tonight to track down a list of Bates numbers. To the extent a document is
in Bulgarian and there is a reasoned basis that the production was "inadvertent" then we will probably have no
issue. Going forward, you can identify such documents before I begin questioning. However, as for Ex. 27,
that is not in Bulgarian; it is straight English and we do not accept that the production was inadvertent. Hotfile
produced relatively few documents related to the WB counterclaim. Ex. 27 was not just mistakenly produced.
Indeed, it plainly reflects the work that HF was doing before March in examining WB files. You cannot turn it
into work product after-the-fact. In any event, Mr. Titov was questioned extensively about that documents
today at deposition, all without any hint of a work product objection. Any work product that may have existed
(which we do not believe was any), or that remained after the production, surely has been waived. In any
event, I do not plan to take deposition time with this. We can resolve the issue of documents already marked
when we return to the states. As for documents going forward, to be clear, it is your duty at the deposition, not
mine, to identify documents that you believe were inadvertently produced.
SBF
From: "Roderick M. Thompson" <rthomp~fbm.com>
Date: Mon, 5 Dec 201115:21:09 -0600
To: Steven Fabrizio <[e-mail]>, Duane Pozza <[e-mail]>, Luke Platzer <[e-mail]>
Cc: "Anthony P. Schoenberg" <[e-mail]>, Andrew Leibnitz <[e-mail]>, "[e-mail]."
<EEnl?~trom..@.fbm.com>, "[e-mail]" <gurvit~@bQstoJ1lawgroup.com>, Janet Munn
<jmunn@rascoklock,com>
Subject: RE: document clawback

Steve, as I advised you today during the deposition, in early March, at the request of its
attorneys, Hotfile began its protected work product investigation in to Warner's wrongful
takedowns via the SRA tool. The date the work product investigation began was March 2 nd ,
2011. As you are aware many of the documents were written in Bulgarian and as a result our
privilege review is taking a long time.
We therefore we ask that you refrain from marking as exhibits at any of the depositions this
week (or otherwise make use of) documents created by Hotfile on or after that date that are
appear to potentially be work product. If there is a question on the issue, please show me the
document before using. In particular, do not use any of the documents listed below in Tony's
email and return all copies to us. I'm copying Luke and Duane to be sure there is no
misunderstanding.
So far you've marked two documents that are work product of Hotfile: (HF2303232) Exh. 26,
that was expressly clawed back in Tony's email to Duane below, and HF 02866338-369 Exh.
27, which we hereby ask that you return to us and destroy all copies pursuant to paragraph

20. As I stated on the record today, we also object to all questions and responses based on
this two documents and ask your assistance in getting them stricken from the record before a
final transcript is prepared. Thank you for your cooperation.
Rod

Steven B. Fabrizio
Jenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
Tel [phone]
Fax [phone]
SF [e-mail]
www.jenner.com

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From: TSchoenberg@fbm,com [mailto:[e-mail]]
Sent: Saturday, December 03, 2011 9:55 AM
To: [e-mail]
Subject: document clawback

DuaneWe hereby request the destruction of the following documents pursuant to paragraph 20 of the
protective order: HF02835266, HF02863431, HF02865156, HF02835194, HF02863433, HF02863224,
HF02863225,
HF02703713,
HF02158854,
HF02305055,
HF02863226,

HF02831644, HF02831511, HF02831512, HF02831538, HF02831598, HF02703712,
HF02703739, HF02703799, HF02703800, HF02703826, HF02703886, HF02831644,
HF02158855, HF02303232, HF02303233, HF02304874, HF02304875, HF02305054,
HF02703712, HF00035990, HF00035991, HF00036777, HF00036778, HF02158745,
HF02863227 and HF02863228. These were inadvertently produced. Each of the

documents is protected by the attorney-client privilege and/or constitute protected work
product. Please confirm that you have destroyed all copies of these documents.
Regards,
Tony
Anthony P. Schoenberg
Attorney at Law

FareHa Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104
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T 415.954.4400
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F 415.954.4480
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LLP