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

Filing 190

MEMORANDUM in Opposition re 184 Plaintiff's MOTION to Compel Deposition of [REDACTED] Defendants' Memorandum of Law In Opposition to Plaintiffs' Motion to Compel the Deposition of Andrei Ianakov by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit 2)(Munn, Janet)

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.
/

DEFENDANTS’ MEMORANDUM OF LAW IN
OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
THE DEPOSITION OF ANDREI IANAKOV

CASE NO. 11-20427-WILLIAMS/TURNOFF
I.

INTRODUCTION
Plaintiffs requested and received from the Court leave to take four days of deposition of

Mr. Titov, in both his individual capacity and as Rule 30b6 designee of Defendant Hotfile Corp.
(“Hotfile”), along with the depositions of the two other owners of Hotfile in Sofia Bulgaria.
Plaintiffs justified this extraordinary request for four days of testimony by one individual in large
part by asserting that they were unable to take the depositions of the non-managing agent
independent contractors who work on Hotfile in Bulgaria, including Mr. Ianakov. Plaintiffs
represented to the Court—correctly—that those depositions could proceed if at all only under the
provisions of the Hague convention. Having deposed Mr. Titov for four full days, Plaintiffs now
take the opposite position and ask the Court to order Mr. Ianakov’s deposition under the Federal
Rules. 1 There is no legal or factual basis for this request; it must be denied.
II.

FACTUAL BACKGROUND
Third Party Andrei Ianakov was an entry-level employee of Blue Ant, Ltd. (“Blue Ant”),

a company which provides contract website support services to Hotfile. See Exhibit 1, attached
hereto, which is the Declaration of Roderick Thompson in Support of Opposition to Motion to
Compel the Deposition of Andrei Ianakov (“Thompson Decl.”), at Ex. A [Titov Dep., Vol. 1] at
27:8-10 2. Mr. Ianakov shared responsibility with Stanislov Manov for answering user inquiries
and responding to DMCA takedown notices for Hotfile. Id. at 27:22-28:10. He reported to Blue
Ant’s owners. Id. at 121:11-15. He was not a manager, and he oversaw the work of no other

1

Plaintiffs filed their motion on December 13, 2011 [I.E. # 184] and requested expedited
briefing in light of the December 23, 2011 discovery cut off. Defendants are filing this
opposition more than a week early as an accommodation to that request, and with the expectation
that any Reply will also be filed promptly to allow a decision by the Court before December 23.
2

All transcript citations are to the “rough” deposition transcripts provided by the court reporters
to both parties at the conclusion of each day’s testimony.
-1-

CASE NO. 11-20427-WILLIAMS/TURNOFF
person. Id. at 100:14-17. He had limited discretion to answer straightforward user requests, but
otherwise sought oversight from Blue Ant’s owners or, for technical issues, Anton Titov. See
Id., Ex. B [Titov Dep., Vol. 3] at 5:5-19. He had no ownership interest in Hotfile and received
no portion of Hotfile’s profits. Id. at 61:20-25, 62:18-21. His salary ranged between $16,150 $24,225 per year. Id. at 62:5-10. He had no authority to set policy for Hotfile. Id. at 151:18-21.
He had no authority to hire or enlist any other individual to assist him with any tasks. Id., Ex. C
[Titov Dep., Vol. 4] at 16:2-7. He had no authority to set prices for Hotfile’s services or change
the benefits that users received without obtaining approval from superiors. Id. at 55:9-23.
On May 2, 2011, Hotfile first disclosed to Plaintiffs that Mr. Ianakov provided e-mail
support services to Hotfile as an employee of Blue Ant, and that he resided in Sofia, Bulgaria.
[See Dkt. No. 174-1 ¶ 5 (discussing Hotfile’s initial disclosures).] For the following five months,
Plaintiffs made no effort to seek his deposition. Eventually, on September 29, 2011 – ignoring
the Hague Convention On Taking Evidence Abroad – Plaintiffs noticed Mr. Ianakov’s deposition
in Miami. [See Dkt. No. 174-10 at 2.] 3 Plaintiffs at first asserted that every Bulgarian individual
who had ever done work for Hotfile was Hotfile’s “managing agent” and thus subject to
deposition under American procedural rules regardless of their citizenship, residence, or any
international convention. [See Dkt. No. 174-11 at 1 (e-mail exchange between counsel).] When
Hotfile requested factual support for Plaintiffs’ characterization of Mr. Ianakov as a “managing
agent” subject to deposition in the absence of the protections of the Hague Convention – a
proposition on which Plaintiffs admitted bearing the burden of proof – Plaintiffs responded with

3

Plaintiffs noticed the deposition in Miami without any evidence that Mr. Ianakov had ever
been to Miami, or Florida, or the United States in his life.
-2-

CASE NO. 11-20427-WILLIAMS/TURNOFF
insults and threats, not facts. 4 The next day, Plaintiffs abandoned their deposition notices
without identifying a single document supporting their position. Id.
On November 16, 2011, Plaintiffs instead filed a motion seeking four days to depose
Defendant Anton Titov both individually and as Hotfile’s corporate designee on grounds that
Plaintiffs were “unable to elicit testimony from other witnesses.” [Dkt. No. 165 at 4.] They
argued that they could not obtain testimony of Blue Ant employees such as Mr. Ianakov under
the procedural rules of the Hague Convention in the time remaining for discovery. [Id. (“While
plaintiffs may attempt to compel depositions of certain of Hotfile’s “employees” through
international process, the timeline of that process is uncertain and, in any event, under
Bulgarian law, it would afford a relatively limited examination.”) (Emphasis added)]. To justify
their request for four days of Mr. Titov’s deposition, Plaintiffs represented to the Court that
Bulgaria does not ordinarily permit depositions of its citizens. [Dkt. No. 176 at 6 n.6 (“under
Bulgarian rules . . . questioning is limited and is done . . . by the court, not counsel”) (citing
Response Bulgaria to Convention of 18 March 1970 on Taking of Evidence Abroad in Civil or
Commercial Matters ¶¶ 42, 44, 63 (2008).] Plaintiffs told the Court that “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,” the three owners of Hotfile and a Rule30
(b)(6) deposition. Id.
The Court granted Plaintiffs motion on December 1, 2011. As planned, Plaintiffs took
the deposition of Hotfile and Mr. Titov for four full days from December 5-8, 2011 as well as the
depositions of Hotfile’s two other principals in Sofia Bulgaria. Plaintiffs now have changed
4

Plaintiffs commanded Hotfile to “stop playing games,” halt the “abuse of the meet-and-confer
process,” stop “obviously seeking to stonewall and delay,” make only “whatever arguments you
ethically can,” and abandon this “sham of a meet-and-confer.” [See Dkt. No. 174-12 (e-mail
exchange between counsel).]
-3-

CASE NO. 11-20427-WILLIAMS/TURNOFF
course and noticed the deposition of Mr. Ianakov on December 8, 2011 and seek to proceed
outside of the Hague Convention. [Dkt. No. 179.] Hotfile forwarded the deposition notice to
Mr. Ianakov on December 13, requesting, that while he is not a Hotfile managing agent and
should not be subject to a deposition, that he confirm that he would appear if ordered by the
Court. In response, and no doubt reflecting Bulgaria’s history of iron curtain repression resulting
in deep-seeded mistrust of governmental authorities, Mr. Ianakov expressed great concern about
being questioned “by foreign lawyers,” which was causing him severe psychological and
emotional distress, and tendered his resignation of employment with Blue Ant, effective
December 15, 2011. Id., Ex. D. Two business days after noticing Mr. Ianakov’s deposition, and
without first speaking with Hotfile’s counsel, Plaintiffs served this Motion on Hotfile.
III.

LEGAL STANDARD
A party may depose a “managing agent” of a party pursuant to notice. Fed. R. Civ. P.

30(b)(6). If the proposed deponent is not an officer, director, or managing agent, then the
examining party must resort to a subpoena pursuant to Rule 45 or international service of process
pursuant to the Hague Convention. Fed. R. Civ. P. 45; E.I. DuPont de Nemours & Co. v. Kolon
Indus., Inc., 268 F.R.D. 45, 48 (E.D. Va. 2010).
In determining whether a deponent qualifies as a “managing agent,” Courts consider:
(1) whether the individual is invested with general powers allowing him to exercise judgment
and discretion in corporate matters; (2) whether the individual can be relied upon to give
testimony, at his employer’s request, in response to the demands of the examining party;
(3) whether any person or persons are employed by the corporate employer in positions of higher
authority than the individual designated in the area regarding which the information is sought by
the examination; (4) the general responsibilities of the individual respecting the matters involved

-4-

CASE NO. 11-20427-WILLIAMS/TURNOFF
in the litigation; and (5) whether the individual can be expected to identify with the interests of
the corporation. JSC Foreign Economic Ass’n Technostroyexport v. International Development
& Trade Services, Inc., 220 F.R.D. 235, 237 (S.D.N.Y. 2004). “Care must be taken not to
confuse the analysis by suggesting that parties who are intimately involved in matters concerning
the litigation, but do not manage, have attributes of managing agents.” DuPont, 268 F.R.D. at 49
n.3. Furthermore, “[t]he general rule is that former employees cannot be managing agents of a
corporation.” Id. at 49
IV.

ARGUMENT
A.

As A Former Entry-Level Employee Of A Consultant To Hotfile, Mr.
Ianakov Remains So Distant From “Managing Agent” Status That He Does
Not Possess Even One Of The Five Relevant Indicia Of Managing Agents

Case law sets forth at least five factors to consider regarding an individual’s alleged
status as a managing agent. JSC, 220 F.R.D. at 237. Mr. Ianakov does not even meet one of
these criteria.
1.

Mr. Ianakov Never Possessed “General Powers Allowing Him To
Exercise Judgment And Discretion In Corporate Matters”

In every one of the cases cited by Plaintiffs, the identified “managing agents” were
founders, chief executives, 50% stakeholders, or individuals with “supervisory authority” over
the CEO of a party. See Felman Prod., Inc. v. Industrial Risk Insurers, No. 3:09-cv-00481, 2010
WL 5110076, at *5 (S.D.W.Va. Dec. 9, 2010) (witness “had supervisory authority over
[Plaintiff’s] CEO); id. at *7 (witness was “50% owner of [Plaintiff]”); Calixto v. Watson
Bowman Acme Corp., No. 07-60077-CIV, 2008 WL 4487679, at *3 (S.D. Fla. Sept. 29, 2008)
(witness was CEO of relevant entity); Founding Church of Scientology v. Webster, 802 F.2d
1448, 1453-54 (D.C. Cir. 1986) (witness was founder of plaintiff organization whose
unquestioned word was scripture “venerated by the flock of the faithful”). Indeed, Plaintiffs’

-5-

CASE NO. 11-20427-WILLIAMS/TURNOFF
case law analogized “managing agent” status under Rule 30 to the “alter ego” of a corporation,
where “an individual so dominates an organization as in reality to negate its separate
personality.” Id. at 1452-3.
Here, as to Hotfile, Mr. Ianakov was neither the chief executive, the 50% stakeholder, the
alter ego, or the founder venerated by his followers as a holy man and prophet. In fact, he is the
former entry-level employee of a third party consulting firm who: responded to user e-mails
alongside another consultant; supervised no one; answered to Hotfile’s owners; possessed no
ownership interest in Hotfile; collected an annual salary as low as $16,150; had no authority to
set policy for Hotfile; had no authority to hire or enlist any individual to assist him; and had no
authority to set prices or change user benefits. The areas in which he exercised “discretion”
related to: (1) implementation of policies dictated to him by Hotfile’s owners regarding repeat
infringers; and (2) responding to the most straightforward user inquiries. This is not the profile
of a managing agent. As Mr. Ianakov put it in his resignation email, “the fact [is] that I am only
an employee of BlueAnt, and my involvement with Hotfile.com was only to the extent of web
support and answering emails/ customer service.” Thompson Decl., Exh. D.
2.

Upon Learning of the Request For His Deposition, Mr. Ianakov
Resigned His Employment With Blue Ant; He Cannot Be Relied Upon
To Give Testimony At Hotfile’s Request

The second factor considered by courts in determining “managing agent” status is
“whether the individual can be relied upon to give testimony, at his employer’s request, in
response to the demands of the examining party.” JSC, 220 F.R.D. at 237. Here, Mr. Ianakov
cannot be expected to testify, even when directed by Blue Ant. Shortly after Plaintiffs’ service
upon Hotfile of the notice of deposition of Mr. Ianakov, Blue Ant’s owners transmitted the
notice to Mr. Ianakov and directed him to confirm that he would appear if ordered by the Court.
In response, on December 13, 2011, Mr. Ianakov wrote “I am so worried that I have to be
-6-

CASE NO. 11-20427-WILLIAMS/TURNOFF
deposed by foreign attorneys, taking into consideration the fact that I am only an employee of
BlueAnt, and my involvement with Hotfile.com was only to the extent of web support and
answering emails/ customer service.” Thompson Decl., Ex. D. He terminated his employment
with Blue Ant, citing stress, effective December 15, 2011. Id.
As a result, there is no reason to believe that Mr., Ianakov will appear for deposition.
Given that Mr. Ianakov is no longer an employee of Blue Ant, and holds no stake in Blue Ant or
Hotfile, he has no motivation to voluntarily appear for deposition – even assuming that he were a
managing agent for Hotfile, which is not the case. Indeed it was the prospect of the deposition
and the stress it was causing him that apparently led Mr. Ianakov to resign. Id, (“Rationalizing
on all the above, I decided to leave the company BlueAnt.”)
Plaintiffs’ own case law demonstrates the impropriety of any deposition of Mr. Ianakov
where he refuses to voluntarily appear at Blue Ant’s request. In JSC, plaintiff sought to avoid
the requirements of the Hague Convention and depose two former officers and directors of
defendants as “managing agents” under Rule 30 even though both individuals resided in Europe.
220 F.R.D. at 237-38. The individuals declined to appear for deposition. Id. at 237.
Overturning the Magistrate Judge’s order compelling the depositions as “clearly erroneous or
contrary to law,” the Court found that “allowing deposition by notice would result in not merely
the waiver of formal subpoena procedures, but also [possibly result in] sanctions on the opponent
for failing to produce witnesses who are in fact beyond its control.” Id. Holding that “[a]
managing agent is a person who has the interests of the corporation so close to his heart that he
could be depended upon to carry out his employer’s direction to give testimony,” the Court
vacated the notices of deposition despite the fact that the witnesses continued to maintain
attenuated connections to the defendants. Id. at 238.

-7-

CASE NO. 11-20427-WILLIAMS/TURNOFF
Here, the case against Mr. Ianakov’s qualification as a “managing agent” remains even
stronger than the arguments possessed by the deponents in JSC. Mr. Ianakov never held a
position as an officer or director of a party. Moreover, he maintains no remaining connection to
Blue Ant or Hotfile. Given that he resides in a European nation subject to the Hague Convention
and has refused to appear voluntarily for deposition – just like the proposed deponents in JSC –
Plaintiffs’ own case law demonstrates the impropriety of deposing Mr. Ianakov under the Federal
Rules of Civil Procedure.
3.

As A Former Entry-Level Employee At Third-Party Blue Ant, Mr.
Ianakov Has No Authority Over The Management Of Hotfile As To
Any Subject

The third factor considered by courts in determining “managing agent” status is “whether
any person or persons are employed by the corporate employer in positions of higher authority
than the individual designated in the area regarding which the information is sought by the
examination.” JSC, 220 F.R.D. at 237. Here, Mr. Ianakov reported to Blue Ant’s owners. See
Id., Ex. A (Titov Dep., Vol. 1) at 121:11-15. He was permitted to handle routine user inquiries
on his own, but if novel issues arose he was required to obtain direction from Blue Ant’s owners
or, for technical issues, Mr. Titov – whom Plaintiffs have already been deposed in this case. See
Id., Ex. B (Titov Dep., Vol. 3) at 5:5-19.
Nor can Plaintiffs establish any need to depose Mr. Ianakov. As Plaintiffs acknowledge
in their motion, Mr. Titov testified as the Rule 30b6 witness of Hotfile on all fifty subjects listed
in Plaintiffs notice, including the subject of terminations of accounts for repeat infringement.
See Opp. at 5 (citing Mr. Titov’s deposition testimony, and noting that Mr. Titov had prepared
and testified as to “what Mr. Ianakov had told him on the subject.”) Plaintiffs do not argue—nor
could they—that Mr. Titov was unprepared to testify on behalf of Hotfile on this or any other
Rule 30b6 topic.
-8-

CASE NO. 11-20427-WILLIAMS/TURNOFF
In short, Mr. Ianakov was not a manager, and indeed oversaw the work of no other
person. Id., Ex. A (Titov Dep., Vol. 1) at 100:14-17. Mr. Ianakov was far distant from being the
ultimate decision-maker on any subject; he had no authority over Hotfile’s management. “[T]he
fact [is] that I am only an employee of BlueAnt, and my involvement with Hotfile.com was only
to the extent of web support and answering emails/ customer service.” Thompson Decl., Exh. D.

4.

By Plaintiffs’ Own Admission, Mr. Ianakov Did Not Have “General
Responsibilities” Regarding The Matters Involved In The Litigation

The fourth factor considered by courts in determining “managing agent” status is
“the general responsibilities of the individual respecting the matters involved in the litigation.”
JSC, 220 F.R.D. at 237. “Care must be taken not to confuse the analysis by suggesting that
parties who are intimately involved in matters concerning the litigation, but do not manage, have
attributes of managing agents.” DuPont, 268 F.R.D. at 49 n.3.
Here, Mr. Ianakov responded to user inquiries and requests that Hotfile “take down” files.
He had no managerial responsibilities – and indeed no responsibilities at all – regarding Hotfile’s
policies, functionality, technical direction, hiring, services, or price. With respect to the topics
for discovery identified by Plaintiffs at the outset of the case, Mr. Ianakov had no involvement
whatsoever with many (if not most) of the topics, including:
•

“technological measures defendants took, did not take,
considered taking, or could have taken to limit
infringement on Hotfile”;

•

“defendants’ revenues and profit from their infringing
activities”;

•

“the extent to which …defendants …receive a financial
benefit attributable to infringement”;

•

“defendants’ right and ability to control infringement,
including by blocking files . . . ”; and
-9-

CASE NO. 11-20427-WILLIAMS/TURNOFF
•

“the identities and involvement of other individuals,
investors, or entities involved in the creation or operation of
Hotfile, or working in concert with defendants to facilitate
infringement.”

Joint Scheduling Report at 5 [Dkt. No. 54].
While Mr. Ianakov shared some role with Stanislav Manov for carrying out Hotfile’s
policies regarding repeat infringers and DMCA takedown requests – topics involved in this
litigation – he exerted no managerial control as required to qualify as a “managing agent” under
the Rules because he managed nothing at Hotfile. See DuPont, 268 F.R.D. at 53 (rejecting
characterization of witness as “managing agent” where witness: “has no authority to approve
technology, hire or fire staff, or approve travel”; “does not appear to have had any supervisory
authority”; and “has not . . . manag[ed] anything.”) As stated in DuPont, “[t]he law of managing
agency cannot, by its plain language, be said to extend to one who was not a manager in some
capacity.” Id.
5.

Having Never Possessed Any Stake In Hotfile, And Having Severed
Any Relationship With Hotfile’s Consultant, Mr. Ianakov Cannot Be
Expected To Identify With The Interests Of Hotfile

The fifth factor considered by courts in determining “managing agent” status is “whether
the individual can be expected to identify with the interests of the corporation.” JSC, 220 F.R.D.
at 237. This is important for two reasons: (1) the testimony of a managing agent binds the
corporation, Fed. R. Civ. P. 32(a)(3); and (2) a managing agent’s failure to obey a discovery
order may subjects the corporate defendant to sanctions, Fed. R. Civ. P. 37(b)(2)(A). A third
party with no interest in the corporate defendant should not bind the corporate defendant or
subject it to sanctions.
Here, Mr. Ianakov never had any stake in Hotfile. He never possessed any ownership
interest, and never received any share of its profits. Indeed, he did not even work directly for

-10-

CASE NO. 11-20427-WILLIAMS/TURNOFF
Hotfile. Currently, he has no relationship with Hotfile – not even an employment relationship
with Blue Ant, Hotfile’s outside consulting firm – and Hotfile could exert no greater influence
over Mr. Ianakov to compel compliance with Plaintiffs’ subpoena. To the contrary, Mr. Ianakov
may hold ill will against Hotfile for subjecting him to a notice of deposition in foreign
proceedings and the accompanying stress. Hotfile should not be bound to Mr. Ianakov’s
behavior or testimony. This factor – which at least one court has viewed as “paramount” –
militates against any characterization of Mr. Ianakov as Hotfile’s “managing agent,” just like all
the other factors discussed herein. In re Honda American Motor Co., Inc. Dealership Relations
Litigation, 168 F.R.D. 535, 541 (D. Md. 1996).
B.

Having Prevailed On Their Motion To Extend The Deposition Of Hotfile
Based On The “Unavailability” Of Mr. Ianakov, Plaintiffs Cannot Now
Justifiably Demand His Deposition

Judicial estoppel bars a party from obtaining judicial relief based on serially inconsistent
positions. See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (“The
purpose of judicial estoppel is to protect the integrity of the judicial process by prohibiting
parties from changing positions according to the exigencies of the moment.”). Judicial estoppel
applies: (1) when the present position is clearly inconsistent with the earlier position; (2) when
the party succeeded in persuading the court to accept the earlier position; and (3) where the party
advancing the inconsistent position would derive an unfair advantage. Id.
Here, Plaintiffs sought to extend the deposition of Hotfile and Anton Titov to four days
based on grounds that Plaintiffs were “unable to elicit testimony from other witnesses.” [Dkt.
No. 165 at 4.] They represented to the Court that they could not obtain testimony of Blue Ant
employees such as Mr. Ianakov under the procedural rules of the Hague Convention in the time
remaining for discovery. Id. The Court, apparently relying on Plaintiffs’ argument, granted the
motion on December 1, 2011. Despite Defendants agreement to “commingle” Mr. Titov’s
-11-

CASE NO. 11-20427-WILLIAMS/TURNOFF
individual and Rule 30b(6) depositions, as the Court had suggested to shorten the overall time,
Plaintiffs insisted on examining Mr. Titov for four full days of deposition in Sofia, Bulgaria
between December 5-8, 2011. See Thompson Decl., ¶ 3. Now, Plaintiffs demand the deposition
of Mr. Ianakov, in conflict with their prior representations, outside of the Hague Convention
procedure. The positions are clearly inconsistent; this Court granted Plaintiffs’ motion after
reviewing Plaintiffs’ argument; and Plaintiffs have now consumed the benefit of that ruling to
Hotfile’s detriment. Robinson, 595 F.3d at 1273. Plaintiffs should not be permitted to advance
directly contrary positions to this Court. Based on judicial estoppel principles alone, Plaintiffs’
Motion should be denied.
C.

Plaintiffs Cannot Properly Seek The Deposition Of Mr. Ianakov Nearly Six
Weeks After Concluding The Parties’ Meet-And-Confer Discussions

Under this Court’s Local Rules, “[a]ll motions related to discovery, including but not
limited to motions to compel discovery and motions for protective order, shall be filed within
thirty (30) days of the occurrence of grounds for the motion.” Local Rule 26.1(h)(1). Apart
from the fact that Plaintiffs have known of Mr. Ianakov’s role in this litigation for eight months,
Plaintiffs first noticed the deposition of Mr. Ianakov over ten weeks ago. [Dkt. No. 174-10 at 2.]
Plaintiffs concluded the meet-and-confer negotiations on October 6, 2011, when Plaintiffs
dismissed Hotfile’s attempt to discuss the issue as abusive game-playing, improper stonewalling,
and a sham. [Dkt. No. 174-12 (identifying further discussion as a “dead issue”).] Nonetheless –
even though Hotfile did not produce any further documents from Mr. Ianakov since September –
Plaintiffs refused to bring any motion to compel for over two months. Instead, Plaintiffs waited
until the last ten days of discovery – when the parties had eighteen remaining depositions to
complete – and demanded that Hotfile file its opposition to Plaintiffs’ motion within three
business hours of the filing. Mot. at 5. Even though no additional meet-and-confer discussion

-12-

CASE NO. 11-20427-WILLIAMS/TURNOFF
occurred between October 6, 2011 and the filing on December 13, 2011 – indeed, Plaintiffs filed
this Motion without even talking to Hotfile’s counsel, despite Hotfile’s stated willingness to talk
– Plaintiffs filed their Motion nearly six weeks after the deadline set by the Local Rules. On its
own, this reason justifies denial of Plaintiffs’ Motion. See Local Rule 26.1(h)(1) (“Failure to file
a discovery motion within thirty (30) days, absent a showing of reasonable cause for a later
filing, may constitute a waiver of the relief sought.”).
V.

CONCLUSION
There is no legal or factual basis to consider Mr. Ianakov as a managing agent; Plaintiffs’

motion to compel the deposition of Andrei Ianakov should be denied. A proposed Order is
attached as Exhibit 2.

Dated: December 19, 2011

Respectfully submitted,

-13-

CASE NO. 11-20427-WILLIAMS/TURNOFF
s/ Andrew Leibnitz
Roderick M. Thompson (Admitted pro hac vice)
[e-mail]
Andrew Leibnitz (Admitted pro hac vice)
[e-mail]
Anthony P. Schoenberg (Admitted pro hac vice)
[e-mail]
Deepak Gupta (Admitted pro hac vice)
[e-mail]
Janel Thamkul (Admitted pro hac vice)
[e-mail]
FARELLA BRAUN & MARTEL LLP
235 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480
s/ Janet T. Munn
Janet T. Munn, Fla. Bar No. 501281
RASCO KLOCK, et al.
283 Catalonia Avenue, Suite 200
Coral Gables, FL 33134
Telephone: [phone]
Telecopy: 305.476.7102
Email: [e-mail]
AND
s/Valentin Gurvits
Valentin Gurvits (Admitted pro hac vice)
BOSTON LAW GROUP
825 Beacon Street, Suite 20
Newton Center, MA 02459
Telephone: [phone]
Telecopy: 617.928.1802
Email: [e-mail]
Counsel for Defendants Hotfile Corporation
and Anton Titov

Counsel for Defendants

-14-

CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2011, the foregoing document was served on all
counsel of record or pro se parties identified below either via transmission of Notices of
Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or
parties who are not authorized to receive electronically Notices of Electronic Filing.

By: s/Janet T. Munn
Janet T. Munn

Karen L. Stetson, Fla. Bar No.: 742937
GRAY-ROBINSON, P.A.
Email: [e-mail]
1211 Brickell Avenue
Suite 1600
Miami, FL 33131
Telephone: [phone]
Telecopy: 305.416.6887
Steven B. Fabrizio (Pro Hac Vice )
Email: [e-mail]
Duane C. Pozza (Pro Hac Vice )
Email: [e-mail]
Luke C. Platzer (Pro Hac Vice )
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Ave, N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Telecopy: 202.639.6066

Karen R. Thorland, Esq. (Pro Hac Vice)
Senior Content Protection Counsel
Motion Picture Association of America, Inc.
15301 Ventura Boulevard Building E
Sherman Oaks, CA
Telephone: [phone]
Email: [e-mail]

-15-