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

Filing 206

MEMORANDUM in Opposition re 180 MOTION to Compel the Production of Titov Deposition Ex. 27 [REDACTED] by Hotfile Corp.. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Munn, Janet)

EXHIBIT 3

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Page 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.,
Plaintiff,

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

HOTFILE CORP.,
Counterclaimant,

v.
WARNER BROS ENTERTAINMENT
INC.,
Counterdefendant.
VOLUME I
HIGHLY CONFIDENTIAL
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30(b)(6) DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia, Bulgaria
Monday, DeceMber 5, 2011
Job Number: 44174
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Page 164
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(Exhibit Titov 26 re-marked for identification.)

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BY MR. FABRIZIO:

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Q. Mr. Titov, I take it that you have no issues reading

4

this document in Bulgarian?

5

A.

6

MR. THOMPSON: His counsel does.

No, I don't.

7

Mr. Fabrizio, let me also just state while he's

8

reading that, we have become aware in the last week or

9

two or some inadvertent produced documents that were

10

written in Bulgarian that contained work product

11

information. And I'd ask -- have asked for their

12

return. I don't know if this is among them or not, not

13

being able to read the Bulgarian.

14

MR. FABRIZIO: Well, then, we can deal with that afterwards.

15

MR. THOMPSON: And I'd just like to -- I'll allow this to

16

continue, but I want to reserve a potential objection to

17

the extent this has any work product.

18

MR. FABRIZIO: Okay. Fair enough. You preserve the

19

objection. Obviously, until we see what it is, I can't

20

say whether we agree or not.

21
22
23

MR. THOMPSON: But you agree there's no waiver by
letting me -MR. FABRIZIO: No, not by letting him answer the following

24

question.

25

BY MR. FABRIZIO:

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A. No, they did not.

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Q. Hotfile had identified what it believed to have been

3

mistakes in the notices by Warner throughout

4

February, March, April and even May of 2001; is that not

5

correct?

6

MR. THOMPSON: I'm going to object to the extent that it

7

calls for work product information which commenced after

8

the date of early March 2011.

9
10

To the extent you can answer without revealing work
product information, you can do so.

11

A. I don't think I can answer.

12

BY MR. FABRIZIO:

13

Q. Okay. Well, you identified what you believed to have

14

been mistakes made by Warner prior to early March 2001;

15

is that not correct?

16

A. Yeah, I believe so.

17

Q. Okay. Did you ever bring those mistakes to the

18

attention of Warner prior to filing your counterclaim?

19

A. Not directly, no.

20

Q. Indirectly?

21

A. It is my belief that at some point our counsel

22
23

communicated with Warner, who knew.
MR. FABRIZIO: Let me ask the court reporter to mark as

24

Titov exhibit 27 a document bearing the Bates number

25

HF02866338 through 369.

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Highly Confidential
Page 191
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.,
Plaintiff,

v.
HOTFILE CORP., ANTON'
TITOV, and DOES 1-10,
Defendants.
HOTFILE CORP.,
Counterclaimant,

v.
WARNER BROS ENTERTAINMENT
INC.,
Counterdefendant.

VOLUME II
HIGHLY CONFIDENTIAL
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30(b)(6) DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia, Bulgaria'
Tuesday, December 6, 2011
AT:
9:10 a.m.
Job No: 44175
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VIDEOGRAPHER: This is the beginning of tape 1, volume II,

2

and a continuation in the deposition of Mr. Anton Titov.

3

On the record, 9:10.

4

MR. THOMPSON: Mr. Fabrizio, as we've been discussing off

5

the record, the defendants have informed you and now

6

inform the court reporter that exhibits 26 and 27 were

7

inadvertently produced documents that contain work

8

product information, and we ask for their return.

9

I would also ask you to work with me after the

10

deposition to strike the testimony that was given

11

pursuant -- about those documents yesterday. We'll not

12

do that now; I won't take your time.

13

The reason for pulling them back is that beginning

14

on March 2nd, 2011, Hotfile undertook work product

15

investigation of its potential counterclaim against

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Warner Brothers. These documents were both generated

17

after that date.

18

We provided you a list on Saturday; I recognize you

19

were in transit and may not have seen it. Exhibit 26

20

was among the documents that were on that list.

21

Exhibit 27 was not, but on further investigation, it's

22

dated March 10 and is also protected work product.

23

I'd like to work with you going forward today to the

24

extent you have documents that you want to use with this

25

witness that are dated or generated after March 2nd.

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But please give me a chance to examine them to make sure

2

that they're not also work product before we examine the

3

witness.

4

With that, and not to belabor the record, I'd like

5

to formally request the return of exhibits 26 and 27 and

6

have them removed from the record.

7

MR. FABRIZIO: Right. I won't belabor our disagreement on

8

this on the record. We'll have plenty of time to

9

discuss it when we're back in the States. But as you

10

out, exhibit 27 wasn't on any -- any list, and that list

11

did come Saturday before a Monday deposition, and I have

12

told you I wouldn't have had a chance to look at it, and

13

didn't and still haven't.

14

So, going forward, I am happy to give you, you know,

15

time to look at the document before we begin questioning

16

the witness; but as for the documents that have already

17

been marked, the only thing I can tell you is that we

18

will -- without waiving -- either party waiving any

19

rights or privileges, we'll see what the situation is

20

and address them when we get back home.

21

I can tell you right now, by way of fair warning,

22

that -- well, exhibit 26 was a document in Bulgarian,

23

and if you can demonstrate that a waiver was or the

24

disclosure was inadvertent, I don't think we'll have

25

issue with it.

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On the other hand, exhibit 27 appears plainly from

2

the testimony yesterday not to be work product, and it

3

is not a document that was produced in Bulgarian; it was

4

produced in English. It was a long document, so could

5

not easily have been missed, and we don't think that the

6

production of it was inadvertent. And moreover, the

7

witness, with counsel present, testified fairly

8

extensively about the document yesterday, so we believe

9

that the document was never privileged to the extent it

10

might have been waived on production. And to the extent

11

it wasn't waived on production, it was certainly waived

12

at this point.

13

But we recognize that you have every right to make

14

a challenge to that, and we will just deal with that in

15

the normal course when we're back in the United States.

16

MR. THOMPSON: Mr. Fabrizio, very briefly, as I told you off

17

the record, you should update yourself of the law. When

18

a document is requested to be pulled back, there is no

19

burden; you have no choice but to give it back to us.

20

There's no longer any need to show that we waived any

21

privilege by inadvertent production. We produced

22

something inadvertently; you are required to provide the

23

documents back to us. You can challenge it later court.

24

With respect to exhibit 26, as you've noted, that's

25

in the Bulgarian language, and we don't speak Bulgarian;

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2

we can't read every document before it was produced.
With respect to exhibit 27, the record will speak

3

for itself. I made very clear to you yesterday that

4

I was concerned about a work product privilege with

5

respect to any document dated after late March, and

6

I would check overnight to get a particular date, and

7

I indulged with you a courtesy, and I expected to have

8

the courtesy returned, of you proceeding with the

9

examination, subject to my objection.

10

Now, what I would ask again today is before you mark

11

any document dated after March 2nd, 2011, pertaining to

12

the Warner Brothers counterclaim, that you give me

13

a chance to check to see if we have in fact asserted

14

that the document is privileged -- which is something,

15

frankly, you and your team should have done. We've

16

issued many other emails with document numbers to be

17

taken back, just as your team has. It wasn't only on

18

Saturday. I just want us both to make sure we don't

19

make the same mistake today of allowing examination on a

20

document that should never have been used.

21

MR. FABRIZIO: Well, we -- I will do whatever I can to

22

reasonably give you an opportunity to look at documents

23

today, as I think I did yesterday, and the record will

24

speak for itself. But as to exhibit 27, there was no

25

objection raised, no concern raised. As to exhibit 26,

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there certainly was, because it was in Bulgarian, and

2

neither one of us knew what the full document said, and

3

you specifically asked me whether I would consider your

4

allowing the witness to be examined on it, a waiver, and

5

I specifically said that I would not consider the fact

6

that Mr. Titov answered questions about that document at

7

his deposition to be a waiver; that we did not have

8

anywhere near -- anything, any agreement as to

9

exhibit 27, and hopefully the record will reflect any

10
11

objections raised as to exhibit 27.
But going forward, we can deal with it. And as for

12

the rules and what I need to educate myself on, the

13

protective order in this case spells out the procedures

14

for requesting back a document that you believe was

15

inadvertently produced. And I believe the protective

16

order is what governs this request, and we are honoring

17

the protective order, and that gives us some number of

18

business days to address it, which, fortunately, lets us

19

conclude this deposition and get back to the United

20

States to address it. And frankly, I am not sure how

21

the protective order or the rules apply once a document

22

has been marked at a deposition and the witness has --

23

has testified extensively on it. That's something we'll

24

have to look at.

25

MR. THOMPSON: I can tell you right now. How it works is

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