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

Filing 195

Plaintiff's MOTION To Substitute Newly Redacted Versions of Motion to Compel the Deposition of Andrei Ianakov in Place of Publicly Filed Versions re 184 Plaintiff's MOTION to Compel Deposition of [REDACTED] by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit Attachment A, # 2 Exhibit Attachment B, # 3 Exhibit Attachment C, # 4 Exhibit Attachment D, # 5 Exhibit Attachment E, # 6 Exhibit Attachment F, # 7 Exhibit Attachment G, # 8 Exhibit Attachment H, # 9 Exhibit Attachment I, # 10 Text of Proposed Order)(Stetson, Karen)

ATTACHMENT A

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’ MOTION AND MEMORANDUM OF LAW
TO COMPEL THE DEPOSITION OF ANDREI IANAKOV
AND REQUEST FOR EXPEDITED BRIEFING
Notwithstanding that the Hotfile website is located in the United States and present in this
District, Defendant Hotfile Corp. (“Hotfile”) has sought to prevent examination of the people
who operate the Hotfile website, asserting that its personnel reside in Bulgaria and cannot be
noticed for deposition pursuant to the Federal Rules of Civil Procedure. The just completed

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depositions of Hotfile’s shareholders, however, establish clearly that Andrei Ianakov was (and is)
performing duties for Hotfile that require Hotfile to produce him for a noticed deposition.
Accordingly, plaintiffs respectfully request that the Court compel Hotfile to produce Mr. Ianakov
for deposition by videoconference. Given the December 23, 2011 fact discovery cutoff, and that
plaintiffs could not have filed this motion prior to depositions in Bulgaria that concluded just a
couple of days ago, plaintiffs request that the Court direct Hotfile to file its opposition no later
than 3pm on Wednesday, December 14th (plaintiffs will file any reply on Friday, December
15th).1
Argument
“Pursuant to Rule 30(b)(1) of the Federal Rules of Civil Procedure, a … managing agent
of a corporate party may be compelled to testify pursuant to a notice of deposition.” JSC
Foreign Econ. Ass’n Technostroyexport v. Int’l Dev. and Trade Servs., Inc., 220 F.R.D. 235, 237
(S.D.N.Y. 2004). The managing agent inquiry is “to be answered pragmatically on an ad hoc
basis,” with consideration of (i) whether the individual is invested by the corporation with
general powers to exercise discretion in dealing with corporate matters; (ii) whether the noticed
deponent can be depended upon to carry out the party’s direction to give testimony; (iii) whether
he can be expected to identify with the interests of the corporation; and (iv) the general
responsibilities of the noticed deponent regarding matters involved in litigation. E.g., Wright &
Miller, Fed. Prac. & Proc. § 2103 (3d ed.) (“FPP § 2103”); JSC Foreign Econ. Ass’n, 220 F.R.D.
at 237; see also Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2008 WL 4487679,
at *3-4 (S.D. Fla. Sept. 29, 2008) (individual was managing agent because he exercised

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While this motion is being filed on Tuesday, December 13, 2011, it was served on Defendants
on Monday, December 12, 2011, in an attempt to resolve the parties’ disagreement prior to
filing.
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discretion and his interests were aligned with the corporation). Typically, courts most heavily
weigh the third factor – whether the noticed deponent can be expected to identify with the
party. See FPP § 2103; see also Felman Prod., Inc. v. Indust. Risk Insurers, No. 3:09-cv-00481,
2010 WL 5110076, at *1-3 (S.D. W.Va. Dec. 9, 2010) (summarizing managing agent standard
from various cases). Although the burden of establishing managing-agent status rests on the
party seeking discovery, courts have “resolved doubts under the standard in favor of the
examining party.” Founding Church of Scientology of Washington D.C. v. Webster, 802 F.2d
1448, 1452 n.4 (D.C. Cir. 1986).
Here, there can be no doubt that Mr. Ianakov satisfies the standard and should be
produced by Hotfile for deposition pursuant to notice. Mr. Ianakov has worked with Hotfile
since its inception. As discussed below, he has been vested by Hotfile with significant
responsibilities directly related to the most critical issues in this litigation, including promotion
of the Hotfile website, responding to copyright infringement notices, terminating users for
repeated copyright infringement, and interfacing with copyright owners on matters of
infringement. Specifically:
1.

Mr. Ianakov had responsibility for promoting Hotfile publicly during the

formative 2009 timeframe after the Hotfile website first launched. He promoted Hotfile through
postings on online forums revealing that Hotfile was touting itself as a source for infringing
content. Declaration of Luke C. Platzer in Support of Motion to Compel the Deposition of
Andrei Ianakov (“Platzer Decl.”), Ex. C (Titov Dep.) at 493-94; see also id., Ex. D (Titov Dep.)
at 637 (promoting Hotfile through Hotfile’s Twitter account).
2.

Mr. Ianakov was identified by Defendant Titov as one of the primary people

responsible for general day-to-day operations of Hotfile, with specific responsibility for handling

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notices of copyright infringement from copyright owners under the Digital Millennium
Copyright Act and for responding to communications from Hotfile users – both critical issues in
the case. Id., Ex. A (Titov Dep.) at 35-36; see also id. at 33-34.
3.

Mr. Ianakov had responsibility for interfacing with copyright owners on

infringement matters. Id., Ex. B (Titov Dep.) at 287.
4.

In the time period before the filing of the complaint in this action, Mr. Ianakov

had responsibility for deciding on behalf of Hotfile which Hotfile users to terminate for repeat
copyright infringement and, according to Mr. Titov, was vested with discretion to make those
decisions. Id., Ex. B (Titov Dep.) at 279-82. Hotfile’s failure to terminate repeat copyright
infringers is a potentially dispositive issue in the case.
5.

Mr. Ianakov was empowered by Hotfile to exercise his direction in responding to

communications from Hotfile’s users. Id., Ex. C (Titov Dep.) at 386-89; see also id. at 396-97.
Those user communications – in which users openly acknowledge they are engaged in copyright
infringement – are central evidence in the case.
6.

Mr. Ianakov wrote the official Hotfile “Frequently Asked Questions” webpage

that (in a version Hotfile has since removed) encouraged users to promote widespread downloads
of Hotfile-hosted content. Id., Ex. D (Titov Dep.) at 674-75.
7.

Mr. Ianakov had responsibility for handling user refunds, and was one of two

authorized users of the Hotfile PayPal account. Id., Ex. E; Ex. F (

Dep.) at 30. After

plaintiffs filed the complaint in this action, Hotfile instituted mass terminations of repeat
copyright infringers, causing at least some Hotfile users to demand refunds because they could
no longer access the copyrighted content they wanted. Defendant Anton Titov was unable to

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answer questions as to users who demanded refunds, pointing to Mr. Ianakov as the one with that
responsibility. Id., Ex. C (Titov Dep.) at 447-48.
8.

Finally, in response to a formal interrogatory, Hotfile identified what it

represented to be a list of all users ever terminated, including for reasons related to copyright
infringement. However, at the Hotfile Rule 30(b)(6) deposition, Mr. Titov (Hotfile’s corporate
designee on the topic), claimed that Mr. Ianakov told him that Hotfile may have terminated
other, undisclosed users. Mr. Titov claimed there were no records of these other alleged
terminations and could only repeat what Mr. Ianakov had told him on the subject, leaving
plaintiffs unable to cross-examine the newfound claim. While the parties were in Bulgaria for
the Hotfile Rule 30(b)(6) deposition, plaintiffs requested that Hotfile seat Mr. Ianakov as
Hotfile’s corporate designee on this topic, but Hotfile refused. Id., Ex. B (Titov Dep.) at 289-92.
Conclusion
Defendants, who all along knew of the important role played by Mr. Ianakov, do not have
a substantial basis for refusing to produce Mr. Ianakov for his noticed deposition, which
plaintiffs have agreed to take by videoconference so that Mr. Ianakov can remain in Bulgaria.
For the foregoing reasons, plaintiffs respectfully request that this motion be granted. In light of
the impending discovery deadlines, defendants should be directed to file their opposition by 3pm
on December 14th.
CERTIFICATE OF GOOD FAITH CONFERENCE
I HEREBY CERTIFY that, pursuant to Local Rule 7.1(a)(3), U.S. District Court for the
Southern District of Florida, counsel for Plaintiffs have conferred with counsel for Defendant
Hotfile Corp. in a good-faith efforts to resolve the issues raised in this Motion without court
action, but have been unable to do so.

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DATED: December 13, 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]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
1099
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone] Telephone:
Facsim

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
New York Ave., N.W.
Suite 900
Washington, DC 20001
[phone]
ile: [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 12th day of December 12, 2011, I served the following document
on all counsel of record on the attached service list via electronic mail:
Plaintiffs’ Motion And Memorandum Of Law To Compel The Deposition Of Andrei
Ianakov And Request For Expedited Briefing
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
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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

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