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

Filing 199

Plaintiff's MOTION to Compel PLAINTIFFS' RENEWED MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM LEMURIA COMMUNICATIONS, INC. (PUBLIC REDACTED VERSION) by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. Responses due by 1/9/2012 (Attachments: # 1 Affidavit Declaration of Duane C. pozza in Support of Renewed Motion to Compel, # 2 Text of Proposed Order)(Stetson, Karen)

ATTACHMENT 1

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.,

Plaintif,
v.

HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/

HOTFILE CORP.,

Counterclaimant,
v.

WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

DECLARATION OF DUANE C. POZZA IN SUPPORT OF PLAINTIFFS' RENEWED
MOTION AND MEMORANDUM OF LAW TO COMPEL PRODUCTION OF
DOCUMENTS FROM LEMURIA COMMUNICATIONS, INC.
I, Duane C. Pozza, hereby declare as follows:
1. I am a partner at the law firm of Jenner & Block LLP, and counsel to the plaintiffs

Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios
Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment Inc.
1

("plaintiffs"). The statements made in this declaration are based on my personal knowledge
including on information provided to me by colleagues or other personnel working under my
supervision on this case. If called to testify, I would testify as follows:

the

2. Attached hereto as Exhibit A is a true and correct copy of excerpts of

deposition of defendant Anton Titov, in his personal capacity and as Fed. R. Civ. P. 30(b)(6)

representative of defendant Hotfle Corp., taken from Dec. 5 to Dec. 8, 20l l.
plaintiffs' subpoena to

3. Attached hereto as Exhibit B is a true and correct copy of

Lemuria Communications, Inc. in this action.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 23,2011, at Washington, DC.

~--Ir
Duane C. Poz a

2

EXHIBIT A

EXHIBIT FILED UNDER SEAL

EXHIBIT B

AO 888 (Rev 06/09) Subpoena to Produce Documents, Information, or Objects or to Peniit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the

Florida

Southern District of

Disney Enterprises, Inc., et al.

)

Plaintif
v.

)
)

Hotfile Corp., Anton Titov, and Does 1-10

)
)

Defendant

Civil Action No. 11-20427-AJ
(If the action is pending in another district, state where:

)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Lemuria Communications Inc.

~ Production: YOU ARE COMM ANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of

the

material: See Schedule A

Date and Time:

Gray-Robinson, PA, c/o Karen Stetson
1211 Brickell Avenue, Suite 1600

05/06/2011 5:00 pm

FL 33131

o Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place

Date and Time:

The provisions of

Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
not doing so, are

45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of

attached.

Date: ~Jü4L~
CLERK OF COURT

OR
Signature of

The name, address, e-mail, and telephone number of

Clerk or Deputy Clerk

the attorney representing (name of

party) Qjsney Enterprises, Inc:-'

, who issues or requests this subpoena, are:
Luke C. Platzer, Jenner & Block LLP, 1099 New York Avenue NW, Suite 900, Washington DC 20001
Phone: [phone]
Email: [e-mail]

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Infoniation, or Objects or to Pemiit Inspection of

Premises in a Civil Action (Page 2)

Civil Action No. 11-20427 -AJ

PROOF OF SERVICE

(This section should not befiled with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of

was received by me on (date)

individual and title, if any) Lemuria Communications Inc.

04/04/2011

rt i served the subpoena by delivering a copy to the named person as follows:

.£Iectronic mail service on Defendants per their agreement to accept service on be~.I.!_~L.l~~.tria

Communications Inc. on (date) 04/04/2011 ; or
o I returned the subpoena unexecuted because:

Unless the subpoena was issued on behalf of
the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of

$

My fees are $

for services, for a total of $

for travel and $

0.00

I declare under penalty of perjury that this information is true.

Date: 04/04/2011

... .... . .LI,.IsÇ~.Elgt~§Ll?Ç!rtneL..,eJ1ner~Jllocl LLP__.~____
Printed name and tite

1099 New York Avenue NW, Suite 900, Washington DC 20001
Phone: [phone]
Email: [e-mail]

Server's address

Additional information regarding attempted service, etc:

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Infonnation, or Objects or to Pennit Inspection of

Federal Rule of

Premises in a Civil Action(Page 3)

Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)

(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.

attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction - which may include lost

These procedures apply to producing documents or electronically
stored information:

(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary

earnings and reasonable attorney's fees - on a party or attorney

course of business or must organize and label them to correspond to

who fails to comply.

information in the form or forms requested. The objection must be
the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving

the categories in the demand.
(B) Formfor Producing Electronically Stored Information Not
Specifed. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows

party may move the issuing court for an order compelling production

good cause, considering the limitations of Rule 26(b )(2)(C). The

or inspection.

court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to

(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or triaL.

(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the part or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises - or to producing electronically stored

served before the earlier of

(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party's

offcer from significant expense resulting from compliance.

(3) Quashing or Modijing a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's offcer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person - except that,

subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modifY the

subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;

protection as trial-preparation material must:

(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of
the claim. The person
who produced the information must preserve the information until
the claim is resolved.

(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from

the expeii's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's offcer to incur
substantial expense to travel more than 100 miles to attend triaL.

(C) Specifing Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifYing a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person wil be reasonably
compensated.

(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty's failure to obey must be excused if
the
subpoena purports to require the nonpart to attend or produce at a
place outside the limits of Rule 45( c )(3 )(A)(ii).

SCHEDULE A
For purposes of this Schedule, the following definitions and instructions apply:
1.

“Defendants” refers to Anton Titov and Hotfile Corp., including any principals,

executives, officers, directors, employees, agents, representatives, or shareholders of Hotfile
Corp., and further including anyone purporting to act on their behalf or you understand to be
acting at their direction.
2.

The term “you” or “your” means Lemuria Communications Inc. (“Lemuria”),

including any principals, executives, officers, directors, employees, agents, representatives, or
shareholders of Lemuria Communications Inc., all of Lemuria’s affiliates, divisions, units,
predecessors-in-interest, successors-in-interest, subsidiaries, parent corporations, and assigns,
and any other person otherwise subject to Lemuria’s control, who controls Lemuria, or is under
common control with Lemuria.
3.

The terms “Hotfile” and “Hotfile Website” mean the website accessible at

www.hotfile.com and hotfile.com and encompass all servers operated as part of the website.
4.

The term “Hotfile Entity” means Hotfile Corp., Hotfile, S.A., and Hotfile, Ltd.,

and any other entity you understand to be involved with the operation of the Hotfile Website,
including their principals, executives, officers, directors, employees, agents, representatives, or
shareholders of such entity, and further including anyone purporting to act on their behalf or you
understand to be acting at their direction.
5.

The singular shall include the plural and vice versa; the terms “and” or “or” shall

be both conjunctive and disjuncti ve; and the term “including” shall m ean “including without
limitation.”

6.

“Date” shall m ean the exact date, m onth and year, if ascertainable or, if not, the

best approximation of the date (based upon relationship with other events).
7.

The term “ document” shall have the m

eaning of the t

erm “docum ents or

electronically stored inf ormation” in Federal Rule of Civil Procedur e 34(a)(1 )(A), and sha ll
expressly include communications.
8.

“Person” shall mean any individual, corporation, proprietorship, partnership, trust,

association or any other entity.
9.

The words “pertain to” or “perta ining to” m ean relates to, ref ers to, r egarding,

contains, concerns, describes, embodies, m

entions, constitutes,

constituting, supports,

corroborates, de monstrates, proves, evidences, show s, refutes, disputes, rebuts, controverts or
contradicts.
10.

The term “ Hotfile user” m eans any person who has directed his or her Internet

browser to the website and service at www.hotfi le.com, including but not lim ited to any person
who has registered with Hotfile, any person who has opened a “Prem ium” Hotfile account, and
any person who is a participant in any of Hotfile’s “Affiliate” programs.
11.

The term “Hotfile Litigation” shall mean any litigation filed against any Hotfile

Entity alleging copyright infringement, including the case entitled Disney Enterprises, Inc. et al.
v. Hotfile Corp., et al., Case No. 1:11-cv-20427-AJ, pending in the United States District Court
for the Southern District of Florida; the case entitled Liberty Media Holdings, LLC v. Hotfile
Corp. et al., No. 1:11-cv-20056-AJ, pending in the United States District Court for the Southern
District of Florida; the action in Liberty Media Holdings, LLC v. Hotfile.com, et al., No. 3:09CV-2396-D, previously filed in the United States District Court for the Northern District of

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Texas; and the action in Perfect 10, Inc. v. Hotfile Corp. et al., No. 2:10-cv-02031 (S.D. Cal.),
previously filed in the United States District Court for the Southern District of California.
12.

To the extent documents are maintained in electronic formats, this subpoena calls

for production in electronic format. Documents maintained in electronic formats should be
produced in their native formats as they currently exist on your storage media and devices.
However, if such native format is one that would not be reasonably usable to persons other than
you (i.e. requires the use of proprietary software or computer systems), such data should be
produced in a usable format to be discussed with Plaintiffs at a mutually convenient time.
13.

If any document is not produced on the basis of a claim of privilege or for any

other reason, identify the document with particularity, including without limitation the author(s),
any recipient(s), any other individual or entity to whom the document has been shown or
transmitted, any other individual or entity with whom the document has been discussed, the
number of pages, attachments, and appendices, the date of the document, a description of the
subject matter sufficient to form the basis of a claimed privilege and to uniquely identify the
document, and a short statement of the nature of the claimed privilege or reason for withholding
production.
14.

A protective order is being negotiated in this action and will be provided to you

once it is executed by the parties and entered by the Court.

3

DOCUMENTS TO BE PRODUCED
REQUEST NO. 1:
All documents pertaining to your relationship with the Hotfile Website, including:
a) All documents pertaining to communications with Defendants or any Hotfile
Entity.
b) All documents pertaining to Lemuria’s role in operating the Hotfile Website.
c) All documents pertaining to Lemuria’s provision of services to Defendants, the
Hotfile Website or any Hotfile Entity, including the provision of:
i. Bandwidth;
ii. Internet connectivity;
iii. Transit;
iv. Peering;
v. Servers and networking equipment;
vi. Co-location space;
vii. Datacenter facilities;
viii. Support staff.
d) All documents pertaining to any contracts, agreements, undertakings, or
understandings pertaining to Defendants or the Hotfile Website.
e) All documents pertaining to any Hotfile users, including communications between
Lemuria and Hotfile users.
f) All documents pertaining to any content files uploaded to, downloaded from, or
hosted on the Hotfile Website.
g) All documents pertaining to the presence of copyrighted material on the Hotfile
Website with or without authorization, including:
i. communications with or copyright takedown notices from copyright
owners or their representatives pertaining to Defendants, any Hotfile
Entity, or the Hotfile Website (“Copyright Notices”), and
ii. your response to, or actions taking in relation to, any such Copyright
Notices.

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REQUEST NO. 2:
All documents pertaining to your relationship with any Hotfile Entity, including:
a) Documents pertaining to any officers, directors, employees, or agents of any
Hotfile Entity who are, or ever have been, officers, directors, employees, or
agents of Lemuria;
b) Documents pertaining to any common ownership between Lemuria and any
Hotfile Entity, including documents reflecting whether any shareholder or other
owner of Lemuria is, or ever has been, a shareholder or owner of any Hotfile
Entity;
c) Documents pertaining to any property (including real property, bank accounts,
office equipment, or computer equipment) owned, held, controlled, or used
jointly, by Lemuria and any Hotfile Entity, regardless of the relative interest of
each;
d) All documents pertaining to any agreements, contracts, undertakings, or
understandings between Lemuria and any Hotfile Entity;
e) All documents pertaining to any and all financial arrangements, revenue sharing,
and accountings between Le muria and any Hotfile Entity, including any revenue,
income, funds, or other valuable cons ideration exchanged between Lemuria and
any Hotfile Entity; and
f) All documents or communications pertaining to Lemuria’s formation and the
reasons therefore.
REQUEST NO. 3:
All documents pertaining to Lemuria’s business plans and marketing plans.
REQUEST NO. 4:
Documents sufficient to show each service Lemuria provides to any person other than
Defendants or any Hotfile Entity.
REQUEST NO. 5:
All documents pertaining to any relationship of any kind that exists, or ever has existed,
between either Lemuria, Defendants, or any Hotfile Entity, and any of the following entities:
a) InCorporate Now Inc.,
b) Webazilla, LLC,
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c) Webzilla, Inc.,
d) Webazilla Ltd.,
e) Webazilla B.V.,
f) IP Transit, Inc.,
g) International Solution Group, Inc.,
h) LinkShop, Inc.,
i) WZ Communications, Inc.,
j) Dedicated Servers LLC,
k) Ecorporate, Inc.,
l) Neocren, Inc.,
m) Any person or entity that operates the website at filesonic.com,
n) Any person or entity that operates the website at depositfiles.com,
o) Any person or entity that operates the website at bitshare.com,
p) Any person or entity that operates the website at hotfilesearch.com;
q) Any person or entity that operates the website at hotfile123.com; and
r) Any person or entity that operates the website at 4shared.com.
REQUEST NO. 6:
Lemuria’s corporate documents, including articles of corporation and corporate bylaws.
REQUEST NO. 7:
Documents sufficient to show all owners, officers, directors, agents, employees of
Lemuria, and the nature of the work performed or scope of the agency of each.
REQUEST NO. 8:
Documents sufficient to show whether, and the full extent that, any part of the
management or operations of Lemuria are carried out by third parties or contractors pursuant to
management contracts (or the equivalent) with any third parties.

6

REQUEST NO. 9:
All documents pertaining to meetings of Lemuria’s board of directors or other governing
body, including documents sufficient to show:
a) The name and title of every individual attending each meeting;
b) The agenda for each meeting;
c) The date and time of each meeting;
d) The place of each meeting; and
e) All minutes or any notes pertaining to each meeting.
REQUEST NO. 10:
All documents pertaining to any Hotfile Litigation.
REQUEST NO._11:
Documents sufficient to show all in come received by Lem uria, directly or ind irectly, in
connection with the Hotfile Website, Defendants, or any Hotfile Entity.

7