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

Filing 217

MOTION to Strike and Memorandum of Law of Defendants Hotfile Corporation and Anton Titov to Strike Plaintiffs' Putative "Rebuttal" Report of Dr. Richard Waterman Before the Close of Expert Discovery on January 17, 2012 and Motion for Expedited Briefing and Hearing at the Upcoming Status Conference on January 13, 2012 by Hotfile Corp., Anton Titov. Responses due by 1/26/2012 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(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 LLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/

MOTION AND MEMORANDUM OF LAW OF DEFENDANTS
HOTFILE CORPORATION AND ANTON TITOV TO STRIKE
PLAINTIFFS’ PUTATIVE “REBUTTAL” REPORT OF DR.
RICHARD WATERMAN BEFORE THE CLOSE OF EXPERT
DISCOVERY ON JANUARY 17, 2012 AND MOTION FOR
EXPEDITED BRIEFING AND HEARING AT THE
UPCOMING STATUS CONFERENCE ON JANUARY 13, 2012

CASE NO. 11-20427-WILLIAMS-TURNOFF
TABLE OF CONTENTS

I.

INTRODUCTION ................................................................................................. 1

II.

FACTUAL BACKGROUND ................................................................................ 2

III.

LEGAL STANDARD ............................................................................................ 9

IV.

LEGAL ARGUMENT ......................................................................................... 10
A.

B.

No Substantial Justification Exists For Dr. Waterman’s New
Opinion, Which Relies On Information Made Available By Hotfile
To Plaintiffs As Much As Eleven Months Before His Original
Report ....................................................................................................... 12

C.

V.

In Failing To “Contradict Or Rebut” Any Point Made By Professor
Boyle, Dr. Waterman’s Report Represents An Untimely Attempt
To Proffer New Opinions In Contradiction To His Initial Report ........... 10

Far From Being “Harmless,” Dr. Waterman’s Belated
Contradiction Of His Original Report Upsets Hotfile’s Reliance
Upon His Repeated Prior Testimony And Now Commits Hotfile’s
Statistics Expert To An Outdated Rebuttal Report .................................. 14

CONCLUSION .................................................................................................... 17

CERTIFICATE OF GOOD FAITH CONFERENCE ..................................................... 18

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

INTRODUCTION 1
Friday night at 11:56 p.m., Plaintiffs served a putative “rebuttal” report from their

statistician, Dr. Richard Waterman. His report purports to rebut the opinion of
Defendants’ expert on copyright matters, Professor James Boyle of Duke Law School.
However, apart from the second paragraph – in which Dr. Waterman agrees with Mr.
Boyle’s statement that his opinion in no way implicates statistics – Dr. Waterman’s report
nowhere mentions Mr. Boyle. Instead, Dr. Waterman uses the opportunity to revoke his
original opinion to which he attested over a dozen times both in his report and at
deposition – i.e., that he only formed a statistical conclusion about the alleged
infringement rate at Hotfile for January 2011 – and expands the scope of report to
evidently include the entire existence of Hotfile for the twenty-two months preceding
January 2011. In so doing, Dr. Waterman relies in this second report on information
available to Plaintiffs for as long as ten months before the deadline for Dr. Waterman’s
first report. This is not rebuttal testimony, but rather a new expert opinion served nearly
two months after the deadline set by this Court’s Scheduling Order. Having taken all of
the twelve depositions of Plaintiffs’ witnesses after Dr. Waterman confirmed his original
opinion over a dozen times, Hotfile cannot now reasonably recapture the opportunity to
question Plaintiffs’ witnesses on relevant subjects. More importantly, Hotfile served its
rebuttal report of its statistician (Dr. Daniel Levy) on Friday, not knowing that later that
night Dr. Waterman would change the scope of his original report. Given the
“automatic” exclusion of belated reports under the Federal Rules and the Court’s
Scheduling Order, this Court should strike Dr. Waterman’s putative rebuttal report.
1

This motion is filed by Defendants Hotfile Corporation and Anton Titov, which are
collectively referred to in this motion as “Hotfile” or “Defendants.”
1

CASE NO. 11-20427-WILLIAMS-TURNOFF
Hotfile seeks expedited treatment of this Motion because expert discovery ends in
twelve days on January 17, 2012. Before attempting to research and oppose a new expert
opinion on short notice in a twelve-day period already subject to five other depositions
across the nation, Hotfile respectfully requests consideration of this Motion. Given that
the parties will appear before the Court for status conferences this Friday (January 13,
2012), Hotfile requests that Plaintiffs complete their Opposition on Wednesday, January
11, 2012, so that Hotfile may file a Reply on Thursday, January 12, 2012. Hotfile has
filed a separate request for hearing or oral argument as required by Local Rule 7.1(b).
II.

FACTUAL BACKGROUND
On August 30, 2011, the Court issued its Scheduling Order. [Docket No. 133.] It

required the exchange of opening expert reports on October 28, 2011. Id. It ordered the
parties to exchange rebuttal expert reports “intended solely to contradict or rebut
evidence on the same subject matter identified by another party” on December 2, 2011.
Id.; Fed. R. Civ. P. 26(a)(2)(C)(ii).

It also set this case for trial on June 4, 2012. Id.

at 1.
On the deadline for producing opening reports, Plaintiffs served a putative expert
report from their statistician, Dr. Richard Waterman. (Attached hereto without exhibits
as Exhibit A [hereinafter, “Waterman Rep.”].) He opined that 90.3% of “daily
downloads” 2 from Hotfile were downloads of infringing or highly likely infringing
2

Although Dr. Waterman does not mention the fact in his report, “daily downloads”
refers to a database record kept by Hotfile that has no known relationship to the number
of all downloads conducted on Hotfile every day. Expert Report of Daniel S. Levy, Ph.D
at 14-16 (attached hereto as Exhibit H). The database record relied upon by Dr.
Waterman excludes free-user downloads by nearly one billion internet users, omits an
unknown number of downloads by “hotlink,” and does not include an unknown number
of downloads of files uploaded anonymously to Hotfile – rendering Dr. Waterman’s
conclusions devoid of any scientific merit. Id. at 21. Perhaps most importantly, Dr.
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CASE NO. 11-20427-WILLIAMS-TURNOFF
content. Id. ¶ 16. Setting aside the multiple, overlapping flaws that render his report
devoid of any scientific merit, 3 Dr. Waterman repeatedly and explicitly confined his
population of interest to daily downloads in a single month of Hotfile’s 34-month
existence: January 2011. See Waterman Rep. ¶ 9 (“I looked at the month of activity
prior to the complaint filing, January 2011”); id. ¶ 7 (“the population of interest consists
of downloads of files from Hotfile in a specified time prior to the complaint, January
2011”).
The same day, Hotfile served the expert report of Professor James Boyle of Duke
Law School. (Attached hereto as Exhibit B [hereinafter, “Boyle Rep.”].) As set forth in
the opening paragraphs of his report entitled “Scope Of Expert Assignment,” Professor
Boyle undertook two tasks: (1) “to explore some examples of the non-infringing uses of
the Hotfile system”; and (2) “to examine Hotfile’s Affiliate program, and specifically to
look at how it can be used to compensate creators of content.” Id. ¶¶ 5-6. He explicitly
disavowed any statistical analysis. See id.. ¶ 7 (“My examination of Hotfile was not an
exhaustive review of the files on Hotfile, nor does it purport to be a representative
statistical sample of the uses of Hotfile as a whole.”); id. at 34 (“This report does not
attempt to present a statistically representative sample of the usage of Hotfile and I have
no personal knowledge about what percentage of Hotfile’s uploaded content, or of user
downloads, is non-infringing.”).

Waterman’s focus on downloads ignores the majority of files on Hotfile (54%) which
were never downloaded at all. Id. at 17.
3
Expert Report of Daniel S. Levy, Ph.D at 21 (attached hereto as Exhibit H).
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CASE NO. 11-20427-WILLIAMS-TURNOFF
On October 20, 2011, Plaintiffs moved to extend the rebuttal report deadline to
December 23, 2011, and then jointly moved to extend the deadline again to January 6,
2012. [See Docket Nos. 156, 157, 198.]
On November 29, 2011, Hotfile’s counsel deposed Dr. Waterman. (Attached in
relevant portion as Exhibit C.) He stated no opinion in reaction to Professor Boyle’s
report served on Plaintiffs nearly two weeks before. Id. at 294:9-13. He did not consider
Professor Boyle’s materials in performing his analysis. Id. at 8:2 - 9:1; 10:24 - 11:1. He
disavowed any training whatsoever in Professor Boyle’s field. Id. at 53:13-17.
Furthermore, he disavowed any expectation of rendering further opinions. Id. 294:9 295:20.
Regarding the temporal scope of his opinion, Dr. Waterman testified that he could
not opine about any level of infringement on Hotfile over the past day, week, month, or
any period after January 2011 because he only studied January 2011.
Q.
Dr. Waterman, in your opinion, how much infringement
has happened by virtue of the Hotfile website in the last 24 hours?
A.
The last 24 hours I would not want to provide an opinion
on that because what I learned about was January 2011, prior to the case
being brought.
…
Q.
Can you provide an opinion today about the level of
infringement over the last week?
A.
I would repeat the same answer as I provided before . . .
…
Q.
So there may be a zero percent level of infringement using
Hotfile’s technology in the last week?
A.
Likewise there could be 100 percent, I agree that both are
possibilities.
Q.
So you can’t testify that it’s not zero percent in the last
week, right?
A.
As I say, my – my study’s absolutely clear as to where the
log file was drawn from which was January of 2011 and my report
pertains to that period in terms of the conclusions that I draw.
…

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CASE NO. 11-20427-WILLIAMS-TURNOFF
Q.
You can’t testify as you sit here today that there was a nonzero level of copyright infringement using Hotfile’s technology in the last
six months, can you?
A.
. . . I have not drawn a conclusion about – in my report
didn’t draw a conclusion about what happened yesterday on Hotfile.
Q.
Or in the last week, or in the last month, or in the last six
months, or indeed since the Complaint was filed in this case.
A.
That is correct. I – I – as I keep stating the data, the log file
that was used in this analysis was the log file for January 2011. The
sample was drawn from file downloads in January of 2011 and therefore
the quantitative inferences pertain to January 2011.
Id. at 85:12-18; 86:18-21; 87:7-20; 88:17 - 90:3 (attached hereto as Exhibit C) (objections
omitted). Just as he disavowed any opinion about infringement on Hotfile after January
2011, he disavowed any opinion about infringement on Hotfile prior to January 2011.
Q.
So you don’t purport to opine about the level of
infringement at Hotfile prior to January 2011?
...
A.
. . . I will say whenever I make something, a statement
outside that population one has to acknowledge that it’s – I – and I haven’t
done that within my report, I hasten to make that point that that’s not my –
my report is about January 2011.
...
Q.
Do you have that information sufficient to back-cast from
January of 2011 now?
A.
To do – my – the objective of my study was not to backcast. I – I – you know, that was not the point of it so I haven’t tried to do
that up to now. And because I haven’t tried to do it I haven’t tried to pull
that information that might help me feel that that was a comfortable thing
to do.
Q.
So you offer no opinion as you sit here today, Dr.
Waterman, about whether there were non-zero levels of infringement at
Hotfile or using Hotfile’s technology in the first two years of its existence?
A.
My study does not pertain to or relate to that specific time
period. It pertains to January 2011.
Q.
So you don’t purport to state or opine that Hotfile had a
non-zero level of copyright infringement through the use of its technology
at any time prior to January 2011; is that fair?
A.
As I said, my study does not pertain to that period. And it
may have been a hundred percent infringement for all I know. It may
have been 50. It may have been zero. My study was designed and it’s
explicitly stated in the report that as to – the log file was January 2011 and
I’m – my conclusions are related to what was going on in January 2011.

5

CASE NO. 11-20427-WILLIAMS-TURNOFF

Id. at 104:24 - 106:13; 107:22 - 109:13 (objections omitted).
On January 2, 2012, Plaintiffs proposed that all experts be permitted to append
additional “demonstrative exhibits” to their original opinions by the deadline for rebuttal
reports on January 6, 2012. Hotfile stated that its experts had already disclosed their
opinions and respectfully declined. It is now clear that Plaintiffs wished to use the excuse
of providing “demonstratives” to supplement Dr. Waterman’s report.
On January 6, 2012 – despite the repeated disavowals in his deposition regarding
extension of his opinion to any time period outside of January 2011 – Dr. Waterman
submitted a “Rebuttal Report” stating that “my conclusions about infringement levels
from the sample data [i.e., 90.3% infringement in January 2011] are likely indicative of
the level of infringement prior to January 2011.” (Attached hereto without exhibits as
Exhibit D ¶ 10). Dr. Waterman’s report purports to respond to the following statement in
the report of Professor Boyle: “My examination of Hotfile was not an exhaustive review
of the files on Hotfile, nor does it purport to be a representative statistical sample of the
uses of Hotfile as a whole.” Id. ¶ 2; Boyle Rep. (attached hereto as Exhibit B) ¶ 7.)
Rather than “contradict or rebut” this point as required by this Court’s Scheduling Order
so as to qualify as a rebuttal report, 4 Dr. Waterman agrees with Professor Boyle’s
statement that his opinion in no way implicates statistics. Dr. Waterman then makes no
reference to any opinion of Professor Boyle for the remaining nine paragraphs of his
eleven-paragraph report. Instead, Dr. Waterman purports to extend the scope of his

4

See Fed. R. Civ. P. 26(a)(2)(C)(ii); Docket Nos. 133, 157 (mirroring federal rule in
reference to former Local Rule 16.1.K).
6

CASE NO. 11-20427-WILLIAMS-TURNOFF
original opinion regarding one month of Hotfile activity to the prior twenty-two months
of Hotfile’s operation. Exhibit D ¶ 10.
Not being a statistician, and having never seen Dr. Waterman’s report, Professor
Boyle’s report of November 18, 2011 offered no opinion on the representativeness of
January 2011 in relation to the preceding twenty-two months of Hotfile’s operations.
Boyle Rep. (attached hereto as Exhibit B). Nonetheless, Dr. Waterman offered this
opinion in his “rebuttal” to Professor Boyle:
In this case, there were strong reasons for choosing January 2011 as the
period of time from which to draw the sample. My reasonable expectation
is that Hotfile, in general, would be more likely to be in possession of
actual content files available on Hotfile in more recent periods of time.
Thus, if we drew a sample of downloads from January 2011, we would be
more likely to obtain the associated files from Hotfile for those downloads
than if we drew a sample of downloads from previous months.
Subsequent to my initial report I have been provided with data that
confirms that expectation. In the attached Exhibit 1, I have provided a
graphic illustration of data showing that cohorts of files uploaded in earlier
months generally were less likely to be available from Hotfile after this
litigation than cohorts of files uploaded in months closer to January 2011.
(I understand that the presence of “file size” data is an indication of
whether Hotfile is still in possession of the content file.) For example,
only 15-20% (at most) of files uploaded shortly after the launch of Hotfile
were still available as of the initiation of litigation, whereas up to 80% of
the more recent files were available.
Waterman Rebuttal Rep. (attached hereto as Exhibit D) ¶ 4. Professor Boyle conducted
no analysis of Hotfile’s preservation of files prior to January 2011. Moreover, all of the
data provided to Dr. Waterman by Plaintiffs’ counsel “[s]ubsequent to [his] initial report”
was made available by Hotfile beginning on October 17, 2011 – over one month before
the deadline for opening expert reports. Dr. Waterman offers no explanation as to why
he did not consider this “data” in his initial report.
Given that Professor Boyle offered no opinion in his report regarding the
representativeness of January 2011 in relation to downloading behavior over the prior

7

CASE NO. 11-20427-WILLIAMS-TURNOFF
twenty-two months of Hotfile’s operations, he made no attempt to address the
development of the Hotfile site over time. Boyle Rep. (attached hereto as Exhibit B). In
contrast, Dr. Waterman opined as follows in his “rebuttal” to Professor Boyle:
I have reviewed data regarding the development of the Hotfile site over
time. Based on my review of the data, it appears that Hotfile grew at a
relatively stable rate from its launch in February 2009 through January
2011. In Exhibits 2, 3, 4, and 5, I have provided a graphic depiction of a
number of trends in the Hotfile data, including the steady growth in
revenue, number of uploads, number of downloads, and available files.
All of these graphs show a distinct “break point” occurring in February
2011, the month in which this litigation began.
Waterman Rebuttal Rep. (attached hereto as Exhibit D) ¶ 5. Again, Dr. Waterman offers
no explanation as to why he did not consider this “data” in his initial report or how this
rebuts any point made by Professor Boyle.
Professor Boyle also did not address changes to Hotfile’s website to address
allegedly-infringing activity. Boyle Rep. (attached hereto as Exhibit B). Nonetheless,
Dr. Waterman’s “rebuttal” report states:
I have received information regarding the changes that Hotfile claims to
have made to address infringing activity at various points in time. While I
have no information about the effectiveness of any of these steps in
reducing infringement, by intention, none of these would be expected to
increase the amount of infringement on Hotfile. As reflected in Exhibits
2-5, each of the steps taken prior to February 2011 appears to have had
little effect on Hotfile’s consistent pattern of growth.
Waterman Rebuttal Rep. (attached hereto as Exhibit D) ¶ 6. Again, Dr. Waterman does
not explain why he did not consider this information in his initial report or how this
rebuts Professor Boyle’s report – a practice he repeats in each of the remaining
paragraphs of his report. See id. ¶¶ 7-11 (setting forth opinions having no relation to
Professor Boyle’s report and omitted here for brevity).

8

CASE NO. 11-20427-WILLIAMS-TURNOFF
On January 7, 2012, Hotfile asked Plaintiffs to withdraw the “rebuttal” report of
Dr. Waterman for failure to “contradict or rebut” any opinion delivered by Hotfile’s
experts as required by Rule 26(a)(2)(C)(ii) of the Federal Rules of Civil Procedure.
Rather than responding with an explanation of how their new report rebutted Professor
Boyle’s opinion, Plaintiffs stated that the report reacted to “the hypotheses you presented
at deposition” because “it was such a focused part of your deposition examination.”
(Attached as Exhibit E.) Hotfile responded that attempting to rehabilitate a witness after
deposition is not grounds for a rebuttal report, since otherwise rebuttal reports and
ensuing re-depositions would have no logical stopping point. As with many or most of
the parties’ past disputes, Plaintiffs then derided Hotfile’s position as sanctionable and
frivolous. E.g., Docket No. 14 at 1; Docket No. 72 at 3; Docket No. 85 at 1. 5 This
motion ensued.
III.

LEGAL STANDARD
A rebuttal report is a report “intended solely to contradict or rebut evidence on the

same subject matter” of an opposing party’s expert report. Fed. R. Civ. P. 26(a)(2)(C)(ii).
Courts may set deadlines for exchange of rebuttal reports. Id. “If a party fails to provide
information or identify a witness as required by Rule 26(a) . . . the party is not allowed to
use that information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
The sanction of exclusion is “self-executing” and “automatic” unless the party proffering
the improper report meets its burden of proving substantial justification or harmlessness.
5

Regrettably, this is consistent with other communications from Plaintiffs’ counsel,
which use such words as “asinine,” “drivel,” “laughable,” and “full of it.” In one
outburst, Plaintiffs’ lead counsel even offered to translate communications from English
into a language that Hotfile’s counsel may understand. Such vitriol is not helpful.
9

CASE NO. 11-20427-WILLIAMS-TURNOFF
Id. (Adv. Comm. Notes 1993); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d
1101, 1106 (9th Cir. 2001). Compliance with Rule 26 is “not merely an aspiration” as
the “expert witness discovery rules are designed to allow both sides in a case to prepare
their cases adequately and to prevent surprise.” Reese v. Herbert, 527 F.3d 1253, 1266
(11th Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454,
457-58 (2006). “A scheduling order is not a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without peril.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992).
IV.

LEGAL ARGUMENT
A.

In Failing To “Contradict Or Rebut” Any Point Made By Professor
Boyle, Dr. Waterman’s Report Represents An Untimely Attempt To
Proffer New Opinions In Contradiction To His Initial Report

Rebuttal testimony is permitted only when it directly addresses an assertion raised
by an opponent’s experts. Benedict v. U.S., 822 F.2d 1426, 1430 (6th Cir. 1987); see IBM
Corp. v. Fasco Indus., Inc., No. 93-20326, 1995 WL 115421, at *3 (N.D. Cal. Mar. 15,
1995) (“[rebuttal experts] cannot put forth their own theories; they must restrict their
testimony to attacking the theories offered by the adversary’s experts.”) Here, Professor
Boyle – a law professor – did not opine about any matter of statistics. Having never seen
Dr. Waterman’s initial report produced the same day, he would have had no reason to
opine about the representativeness of January 2011 in relation to the preceding twentytwo months of Hotfile’s operations, and thus he did not do so. He did not opine about the
development of the Hotfile site over time. He did not opine about changes that Hotfile
made to address allegedly-infringing activity. He did not opine about the absence of nonPremium users from Hotfile’s “dailydownloads” database records. In fact, Professor
Boyle repeatedly and explicitly disavowed any statistical analysis. See Boyle Rep.

10

CASE NO. 11-20427-WILLIAMS-TURNOFF
(attached hereto as Exhibit B) ¶ 34 (“This report does not attempt to present a statistically
representative sample of the usage of Hotfile and I have no personal knowledge about
what percentage of Hotfile’s uploaded content, or of user downloads, is non-infringing.”)
(emphasis added). Nevertheless, Dr. Waterman proffers a “rebuttal” report regarding the
representativeness of January 2011 in relation to the preceding months of Hotfile’s
operations, the development of Hotfile over time, changes made at Hotfile to address
allegedly-infringing activity, and the alleged justifiability of relying on Hotfile’s
“dailydownloads” data in performing a statistical analysis. Waterman Rebuttal Rep.
¶¶ 3-11. His only mention of Professor Boyle is to agree with him. Id. ¶ 2 (“as Prof.
Boyle acknowledges, he did not attempt to analyze a representative statistical sample
. . . ”) (emphasis added). This is no rebuttal report. 6
Plaintiffs’ actual purpose in disclosing Dr. Waterman’s “rebuttal” report is to
attempt to rehabilitate him as a witness. He testified over a dozen times at deposition that
his opinion regarding the incidence of alleged infringement on Hotfile applied only to
January 2011. Waterman Dep. at 83:8 - 109:13 (attached hereto as Exhibit C). In his
“rebuttal” report, Dr. Waterman contradicts this testimony, now stating that his
“conclusions about infringement levels from the sample data are likely indicative of the
level of infringement prior to January 2011.” Waterman Rebuttal Rep. ¶ 10 (attached
hereto as Exhibit D). In short, the only person Dr. Waterman rebuts in his latest report is
himself. This is not a proper basis for producing new opinions nearly two months after

6

“[A] party can control the scope of the testimony of its adversary’s rebuttal experts by
limiting its own experts’ testimony to a given subject matter.” IBM Corp. v. Fasco
Indus., Inc., No. 93-20326, 1995 WL 115421, at *3 (N.D. Cal. Mar. 15, 1995). That is
what Hotfile did when Professor Boyle disavowed any statistical expertise or opinion.
Plaintiffs cannot justifiably ignore this rule.
11

CASE NO. 11-20427-WILLIAMS-TURNOFF
the disclosure deadline. See Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1169-70
(D. Colo. 2006) (“[A] supplemental expert report that states additional opinions or
rationales or seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the original expert
report exceeds the bounds of permissible supplementation and is subject to exclusion
under Rule 37(c). To rule otherwise would create a system where preliminary [expert]
reports could be followed by supplementary reports and there would be no finality to
expert reports, as each side, in order to buttress its case or position, could ‘supplement’
existing reports and modify opinions previously given.”); Nelson v. Freightliner LLC,
No. 5:01-cv-266, 2003 WL 25781423, at *2 (M.D. Fla. Apr. 23, 2003) (“To construe
supplementation to apply whenever a party wants to bolster or submit additional expert
opinions would wreak havoc in docket control and amount to unlimited expert opinion
preparation.”).
B.

No Substantial Justification Exists For Dr. Waterman’s New Opinion,
Which Relies On Information Made Available By Hotfile To Plaintiffs
As Much As Eleven Months Before His Original Report

Under the Federal Rules, parties cannot proffer additional expert reports after the
deadline for initial reports in order to consider additional documents which were
available to the witness prior to the deadline. See Alphamed Pharms. Corp. v. Arriva
Pharms., Inc., No. 03-20078-CIV, 2005 WL 5960935, at *8 (S.D. Fla. Aug. 24, 2005)
(“The documents upon which Bratic claims to rely were not acquired after writing the
initial report. Therefore, the late disclosure is not supplemental, and it is stricken.”).
This prevents a “shifting sands” approach to litigation, thereby encouraging predictability
in expert discovery, discouraging gamesmanship, and combating needless expenditures
for all parties. See Reese v. Herbert, 527 F.3d at 1266, overruled on other grounds by
Ash v. Tyson Foods, Inc., 546 U.S. at 457-58 (“The expert disclosure rule is intended to

12

CASE NO. 11-20427-WILLIAMS-TURNOFF
provide opposing parties reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.”); Nelson v.
Freightliner, 2003 WL 25781423, at *4 (“Strict adherence to discovery rules is necessary
to prohibit not only trial by ambush, but discovery gaming wherein a party holds back
evidence or does not pay sufficient attention in the first instance to develop expert
testimony.”).
Here, Dr. Waterman states that he based his “rebuttal” report on documents
available to Plaintiffs for nearly a year. For example, he produced with his rebuttal report
a study published in January 2011 commissioned by NBC Universal and produced by
Plaintiffs here. (Attached hereto as Exhibit F.) Dr. Waterman does not explain why he
only reviewed that document after the deadline for his initial report. Likewise, Dr.
Waterman considered a graph generated by the web information company Alexa
(attached hereto as Exhibit I) – which has existed since April 1996. See
http://www.alexa.com/ company. He does not explain why he did not review that graph
previously. Next, in a document produced with his rebuttal report entitled “Other
Documents Considered by Dr. Waterman for his Rebuttal Report” (attached hereto as
Exhibit G), Dr. Waterman states his reliance upon “Defendants’ Amended Supplemental
Response to Plaintiffs’ Interrogatory No. 2, dated June 2, 2011.” By definition, this
document had been available to Plaintiffs for five and one-half months by the time that
Dr. Waterman produced his original report. Dr. Waterman then asserts that he relies
upon unidentified “testimony of Anton Titov” from this litigation regarding Hotfile’s
“dailydownload” data. Id.; Waterman Rebuttal Rep. ¶ 9 (attached hereto as Exhibit D).
However, Plaintiffs deposed Mr. Titov about “dailydownload” data on November 17,

13

CASE NO. 11-20427-WILLIAMS-TURNOFF
2011 – prior to production of Dr. Waterman’s original report. 7 Given his reliance on
information made available to Plaintiffs prior to the date for his original report, no
justification (“substantial” or otherwise) exists for Dr. Waterman’s putative rebuttal
report. See Beller v. United States, 221 F.R.D. 696, 701-702 (D.N.M. 2003) (Rule 26
does not give license to “sandbag” one’s opponent with claims and issues that should
have been included in the expert’s original report).
C.

Far From Being “Harmless,” Dr. Waterman’s Belated Contradiction
Of His Original Report Upsets Hotfile’s Reliance Upon His Repeated
Prior Testimony And Now Commits Hotfile’s Statistics Expert To An
Outdated Rebuttal Report

The Advisory Committee notes describe a “harmless” nondisclosure as: an
“inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential
witness known to all parties; the failure to list as a trial witness a person so listed by
another party; or the lack of knowledge of a pro se litigant of the requirement to make
disclosures.” Fed. R. Civ. P. 37(c)(1) (Adv. Comm. notes 1993). Plaintiffs here cannot

7

Dr. Waterman writes in his “rebuttal” report that “I understand that Mr. Titov has
testified that he does not have any reason to believe that the downloading patterns of
users from those other countries [referring to countries not affiliated with Hotfile] are any
different from those of the users from the 54 Affiliate countries.” Waterman Rebuttal
Rep. ¶ 9. However, Dr. Waterman himself acknowledges that “there have been over 2
billion downloads over the lifetime of Hotfile” – making it utterly implausible that Anton
Titov should know the content of those two billion files, especially given that Hotfile
does not invade its users’ privacy by examining their files. In any event, Dr. Waterman
cannot credibly rely on the following testimony to justify a “rebuttal” report which agrees
with Mr. Titov’s testimony:
Q.
Do you have any reason to believe that users from countries on the
list of 54 download different files than users from countries that are not on
the list of 54?
MR. THOMPSON: Same objection [calls for speculation, lacks
foundation].
A.
I don't have an opinion on that.
Titov. Dep. at 664:17-21.
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CASE NO. 11-20427-WILLIAMS-TURNOFF
even come close to discharging their burden of proving their wrongful conduct to be so
“harmless.” Yeti by Molly, 259 F.3d at 1106.
Dr. Waterman stated repeatedly in his original report that his opinion only related
Hotfile downloads from January 2011. See Waterman Rep. ¶ 9 (attached hereto as
Exhibit A) (“I looked at the month of activity prior to the complaint filing, January
2011”); id. ¶ 7 (“the population of interest consists of downloads of files from Hotfile in a
specified time prior to the complaint, January 2011”). He confirmed over a dozen times
in his deposition that he had no opinion about the incidence of alleged infringement on
Hotfile either before or after January 20121. Waterman Dep. at 83:8 - 109:13 (attached
hereto as Exhibit C). He then concluded his deposition by stating that there were no
other opinions that he would render in this case, no other inquiries that he would
undertake, and no further information that he would consider.
Q.
Are there other opinions that you are going to render in this
case that you have not stated today?
A.
At this stage I have no preparation or other opinions to
make.
...
Q.
Are there further inquiries that you expect to undertake
before trial?
A.
At po – at this point in time I have no expectation of initia –
additional analyses.
...
Q.
Have you been asked to do anything further?
A.
At this stage I have no further requests on my time.
Id. at 294:9 - 295:20.
Following Dr. Waterman’s deposition, Hotfile justifiably relied upon the belief
that Plaintiffs were offering no statistical evidence of infringement apart from the one
month of January 2011. Hotfile took the deposition of each of the Plaintiffs’ witnesses –
twelve depositions in all – knowing that it need ask no questions regarding such topics as

15

CASE NO. 11-20427-WILLIAMS-TURNOFF
downloading behavior over time, changes in consumption of online media since 2009, the
growth of cyberlockers, and Plaintiffs’ efforts to study the incidence of alleged
infringement online over time. Fact discovery is now closed. Absent reopening
discovery and revisiting the trial schedule – which Hotfile does not seek and which would
cause litigation costs to balloon – Hotfile cannot recover the lost opportunity to examine
Plaintiffs on these subjects.
Moreover, Hotfile relied upon Dr. Waterman’s’ original report and testimony in
proffering its own expert testimony. Hotfile did not adduce testimony from any industry
expert regarding alterations in online usage patterns over the past three years. It did not
ask its existing expert, Dr. Andrew Cromarty, to address technological reasons why a
statistician may not properly assume stability in the rate of infringing behavior over the
past three years either at Hotfile, using cyberlockers, or online generally. (Thus Dr.
Cromarty did not produce any rebuttal report in this case.) Perhaps most importantly,
Hotfile asked its statistics expert, Dr. Daniel Levy, to address Dr. Waterman’s original
report in light of his deposition – not knowing that thirty-six minutes after Dr. Levy
submitted his rebuttal to Dr. Waterman on January 6, 2012 that Dr. Waterman would
expand the scope of his original opinion from one month of downloading behavior to
more than twenty-two months. Plaintiffs cannot credibly deny the prejudice effectuated
on Hotfile by such “sandbagging” behavior.
Hotfile also relied upon Dr. Waterman’s repeated testimony in formulating its
settlement strategy. Nonetheless, four minutes before midnight on the last business day
before the court-ordered mediation – and after Hotfile’s three client representatives had
begun the journey from Bulgaria to attend the mediation – Plaintiffs unexpectedly

16

CASE NO. 11-20427-WILLIAMS-TURNOFF
produced Dr. Waterman’s new report. Ambushes do not improve mediations. Should
mediation now fail, Hotfile would have invested in proceedings unilaterally disrupted by
Plaintiffs’ wrongful conduct.
“Federal courts routinely strike expert reports or exclude expert testimony which
is not timely disclosed, even if the consequence is to preclude a party’s entire claim or
defense.” Kendall Lakes Towers Condominium Ass’n, Inc. v. Pacific Ins. Co., No. 1024310-CIV, 2011 WL 6372198, at *3 (S.D. Fla. Dec. 20, 2011). Plaintiffs here have
disregarded the Court’s Scheduling Order requiring the exchange of expert reports by
November 18, 2012. They attempt to disguise new opinions as rebuttal opinions. See
Pierce v. Novastar Mort., Inc., No. C05-5835, 2007 WL 636029, at *4 (W.D. Wash. Feb.
26, 2007) (striking rebuttal opinions not addressed in adversary’s initial report); United
States v. Southern Cal. Edison Co., No. 01 Civ. 5167, 2005 LEXIS 24592, at *8-16 (E.D.
Cal. Sept. 23, 2005) (same). Plaintiffs’ behavior should bear the consequence
contemplated under the Federal Rules, and the “rebuttal” report of Dr. Waterman should
be stricken.
V.

CONCLUSION
For the foregoing reasons, the Court should strike the putative “rebuttal” expert

report of Dr. Richard Waterman served on January 6, 2012. A proposed Order on
Defendants’ Motion for Expedited Briefing and for Hearing on January 13, 2012, is
attached hereto as Exhibit J. Further, a proposed Order on Defendants’ Motion to Strike
is also attached hereto, as Exhibit K.

17

CASE NO. 11-20427-WILLIAMS-TURNOFF
CERTIFICATE OF GOOD FAITH CONFERENCE
I hereby certify that counsel for the movant, Andrew Leibnitz, conferred with all
parties or non-parties who may be affected by the relief sought in this motion, including
Plaintiffs’ counsel, Steven B. Fabrizio, in a good faith effort to resolve the issues and has
been unable to do so.
s/ Andrew Leibnitz
Andrew Leibnitz
Respectfully submitted,
DATED: January 9, 2012

By: /s/ Andrew Leibnitz
Roderick M. Thompson (admitted pro
hac vice)
Email: [e-mail]
Andrew Leibnitz (admitted pro hac vice)
Email: [e-mail]
Anthony P. Schoenberg (admitted pro
hac vice)
Email: [e-mail]
Deepak Gupta (admitted pro hac vice)
Email: [e-mail]
Janel Thamkul (admitted pro hac vice)
Email: [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
Email: [e-mail]
Rasco Klock
283 Catalonia Avenue, Suite 200
Coral Gables, Fl 33134
Telephone: [phone]
Telecopy: 305.476.7102

18

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 Defendants Hotfile Corporation
and Anton Titov

19

CASE NO. 11-20427-WILLIAMS-TURNOFF
CERTIFICATE OF SERVICE
I hereby certify that on January 9, 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
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

20

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