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

Filing 212

MEMORANDUM in Opposition re 199 Plaintiff's MOTION to Compel PLAINTIFFS' RENEWED MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM LEMURIA COMMUNICATIONS, INC. (PUBLIC REDACTED VERSION) by Lemuria Communications, Inc.. (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.

/

MEMORANDUM OF LAW OF NONPARTY LEMURIA
COMMUNICATIONS, INC. IN OPPOSITION TO PLAINTIFFS’
RENEWED MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Nonparty Lemuria Communications, Inc. (“Lemuria”), has already produced all of the
documents demanded by Plaintiffs in their Motion. Lemuria informed Plaintiffs of this fact in
writing on December 21, 2011 – prior to the filing of this Motion. Plaintiffs filed this Motion
anyway, without even picking up the telephone to speak with Lemuria’s counsel. Plaintiffs thus
continue their war of attrition, seeking to murder any corporation connected to Defendants
simply through the litigation costs imposed. This is improper. This Motion is devoid of any
factual basis. It should be denied.
Regarding the specifically-identified categories of documents supposedly not produced
by Lemuria, Plaintiffs assert that Lemuria has withheld communications with contractors such as

CASE NO. 11-20427-WILLIAMS/TURNOFF

Blue Ant, Ltd. or its employees (collectively, “Blue Ant”) regarding Hotfile activities. Plaintiffs
make this assertion based solely upon their unfounded speculation:
If defendant Titov engaged in communications with Messrs.
[REDACTED] 1 and [REDACTED] about copyright infringement
on the Hotfile website, Lemuria (and defendants) would have been
able to conceal those documents under the guise that those
communications were between Lemuria (which Mr. Titov owns
and operates) and Blue Ant (which Messrs. [REDACTED] and
[REDACTED] own and operate). Likewise, Lemuria and
defendants would have been able to conceal incriminating
communications between and among Mr. Titov and any
“employees” of Hotfile under the similar guise that those
communications were between Lemuria and Blue Ant personnel.
Mot. at 3 (emphasis added). However, there was no need for Plaintiffs to speculate here: prior
to the filing of this Motion, Lemuria explicitly stated to Plaintiffs in writing that it had produced
its communications “between Lemuria and any employee or contractor of Blue Ant.” There is
simply nothing else to produce. Nonparty Lemuria should not have had to file this Opposition.
Plaintiffs also speculate that “Lemuria in particular could be used to shield
communications between Lemuria and . . . Vobile [i.e., Hotfile’s supplier of content-filtering
technology].” Mot. at 8-9. Again, Lemuria already stated to Plaintiffs in writing prior to this
Motion that Lemuria’s production had included any “ nonprivileged, responsive communications
located after a reasonable search between Lemuria and . . . any Vobile representative.” As
evident from the terms of this representation, Lemuria did not impose any limitation or condition
on its production of these documents. While Plaintiffs spend eight pages of argument attacking
the “fiction” of Lemuria’s separate corporate existence, such an argument remains as pointless as
it is meritless: Lemuria did not withhold Vobile-related communications from its production.

1

Lemuria has redacted the names of the two owners of Blue Ant here. The names appear on
page 3 of Plaintiffs’ Motion, filed under seal on December 23, 2011.
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CASE NO. 11-20427-WILLIAMS/TURNOFF

Without the benefit of a single legal citation, Plaintiffs argue that the Court should
compel the production of documents from non-party Lemuria based solely on the Plaintiffs’
speculation that – because Lemuria and Hotfile have some common owners 2 – “any of them
could be in possession of critical documents.” Plaintiffs’ Motion at p. 8. Florida law does not
support the Plaintiffs’ attempts to pierce Lemuria’s corporate form. See, e.g., Gov't of Aruba v.
Sanchez, 216 F. Supp. 2d 1320, 1362 (S.D. Fla. 2002)(“The GOA contends that the corporate
veil should be pierced because Sanchez dominated and controlled MAI, failed to observe
corporate formalities and MAI was not adequately capitalized. The law does not support the
GOA's attempt to pierce the corporate veil. Under Florida law... courts are reluctant to pierce the
corporate veil and will do so only in exceptional cases where there has been extreme abuse of the
corporate form”)(multiple citations omitted). “Even if a corporation is merely an alter ego of its
dominant shareholder or shareholders, the corporate veil cannot be pierced so long as the
corporation's separate identity was lawfully maintained. ...It is insufficient that a shareholder
operated a wholly-owned corporation in a ‘loose and haphazard manner;’ the corporation did not
observe corporate formalities, had no capitalization, and the sole shareholder exercised complete
control. ...Under Florida law, to pierce the corporate veil a plaintiff must show that the
corporation was organized or employed as a mere device or sham to work a fraud on creditors.”
Id. (multiple internal citations omitted).
In the present case, Lemuria exists as a separate legal (and actual) corporate entity. It is
registered and recognized as the Florida Secretary of State as a corporate entity; it is properly

2

Interestingly, even though a variety of corporations within Plaintiffs’ organizations also share
corporate ownership, the Plaintiffs seem to believe that their corporate entities should be
respected.
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CASE NO. 11-20427-WILLIAMS/TURNOFF

capitalized; it files annual reports; and it observes corporate formalities. In the face of this,
Plaintiffs offer nothing other than unsubstantiated and baseless conspiracy theories.
Judge Jordan rejected Plaintiffs’ motion to compel regarding the instant document
demands over three months ago. [See Docket No. 145.] On the facts set forth by Plaintiffs on
this motion for reconsideration, no possible reason exists to disturb his ruling. Indeed, nonparty
Lemuria should never have had to file this brief. Plaintiffs cannot properly impose costs on
opponents simply as punishment. Plaintiffs’ motion to compel further production of documents
from Lemuria should be denied.
Dated: January 5, 2012

Respectfully submitted,
s/ Janet T. Munn
Janet T. Munn, Fla. Bar No. 501281
Email: [e-mail]
Rasco Klock
283 Catalonia Avenue, Suite 200
Coral Gables, FL 33134
Telephone: [phone]
Telecopy: 305.476.7102
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

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CASE NO. 11-20427-WILLIAMS/TURNOFF

AND
s/Valentin Gurvits
Valentin Gurvits (Admitted pro hac vice)
Email: [e-mail]
BOSTON LAW GROUP
825 Beacon Street, Suite 20
Newton Center, MA 02459
Telephone: [phone]
Telecopy: 617.928.1802
Counsel for Non-Party Lemuria

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CASE NO. 11-20427-WILLIAMS/TURNOFF

CERTIFICATE OF SERVICE
I hereby certify that on January 5, 2012, 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

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

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

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