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

Filing 238

REPLY to Response to Motion re 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 f Reply Memorandum of Defendants Hotfile Corporation and Anton Titov In Support of Motion to Strike Plaintiffs' Putative "Rebuttal" Report of Dr. Richard Waterman filed by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P)(Munn, Janet)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-CIV-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.
/

REPLY MEMORANDUM OF DEFENDANTS HOTFILE
CORPORATION AND ANTON TITOV IN SUPPORT OF
MOTION TO STRIKE PLAINTIFFS’ PUTATIVE
“REBUTTAL” REPORT OF DR. RICHARD WATERMAN

TABLE OF CONTENTS
Page
I.

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

II.

LEGAL ARGUMENT ........................................................................................... 1
A.

In Failing To Rebut Any Evidence Given By Professor Boyle, Dr.
Waterman’s Report Represents An Untimely Attempt To Proffer
New Opinions In Contradiction To His Initial Report............................... 1
1.

Dr. Waterman Proffers New Testimony, Not A Rebuttal .............. 1

2.

Proffered For Rehabilitation Purposes, Dr. Waterman’s
Report Is Not “Intended Solely To Contradict Or Rebut
Evidence On The Same Subject Matter” As Professor
Boyle .............................................................................................. 3
a.

In His “Rebuttal” Report, Dr. Waterman Mentions
Professor Boyle Only To Agree With Him........................ 4

b.

Dr. Waterman Invokes Professor Boyle As A
Pretext For Attempting To Rehabilitate His Original
Report ................................................................................. 4

c.

Plaintiffs Make No Showing That Dr. Waterman
“Rebuts” Professor Boyle .................................................. 5

B.
C.
III.

No Substantial Justification Exists For Dr. Waterman’s New
Opinion ...................................................................................................... 7
Only Preclusion Can Remedy Plaintiffs’ Sandbagging Absent
Reopening Of Discovery, Which Hotfile Cannot Afford .......................... 8

CONCLUSION .................................................................................................... 10

-i-

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

INTRODUCTION
Dr. Waterman’s “rebuttal” report on statistics does nothing to rebut Professor Boyle’s

original report containing his legal analysis. Dr. Waterman’s recent report mentions Professor
Boyle in its second paragraph solely for the purposes of agreement, and then departs into nine
paragraphs in which Dr. Waterman seeks to reverse a concession he made over a dozen times in
his initial opinion: namely, that his statistical study only applied to alleged infringement at
Hotfile in the single month of January 2011. While Plaintiffs emphasize one instance over the
course of a twenty-page single-spaced report in which Professor Boyle uses the word
“substantial” to describe the 1.7 million downloads of “open source” software that he found to be
non-infringing, Plaintiffs ignore the fact that Professor Boyle repeatedly disclaims any effort to
perform a statistical study. Plaintiffs’ allusion to Professor Boyle in Dr. Waterman’s report is
simply a pretext for a belated attempt to rehabilitate their witness.
Hotfile relied on Dr. Waterman’s repeated averments in his original report, his more than
a dozen sworn confirmations of the limited scope of his report in deposition, and his repeated
verifications under oath that he would not change course. On that basis, Hotfile deposed
Plaintiffs’ twelve witnesses, defended six days of deposition, commissioned one rebuttal expert
report (while declining another), participated in a mediation, and drafted the summary judgment
papers due in two weeks. Plaintiffs’ suggestion that simply retaking the deposition of Dr.
Waterman could cure Hotfile’s prejudice lacks any credibility.
The Court issued its Scheduling Order in this case for a reason. If corporations with the
resources of Plaintiffs can disregard such orders, litigants like Hotfile cannot reasonably defend
themselves. Dr. Waterman’s “rebuttal” report should be stricken.
II.

LEGAL ARGUMENT
A.

In Failing To Rebut Any Evidence Given By Professor Boyle, Dr.
Waterman’s Report Represents An Untimely Attempt To Proffer New
Opinions In Contradiction To His Initial Report
1.

Dr. Waterman Proffers New Testimony, Not A Rebuttal

Plaintiffs contend that Dr. Waterman’s rebuttal report does not contain original opinion
testimony subject to the “automatic” exclusion applied to belated reports because “Dr.
Waterman’s initial report did not purport to limit his conclusions to a specific time period.” Opp.
at 2 (emphasis in original); Mot. at 9-10 (citing authorities). However, on over a dozen
1

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
occasions in his deposition, Dr. Waterman explicitly disagrees. E.g., Mot., Ex. C at 106:12-13
(“my report is about January 2011”); 108:18-21 (“My study . . . pertains to January 2011”);
109:9-13 (“my conclusions are related to what was going on in January 2011”); 87:16-20 (“my
study’s absolutely clear [that] . . . my report pertains to that period [January 2011] in terms of the
conclusions that I draw”); 89:21-90:3 (“as I keep stating . . . the quantitative inferences pertain to
January 2011”); see also Waterman Rep. [Mot., Ex. A] ¶ 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”).
Plaintiffs discount Dr. Waterman’s testimony (set forth in greater length in Hotfile’s
opening brief) as a series of “isolated quotes” which “lack context.” Opp. at 6. However,
Hotfile attached twenty-seven pages of uninterrupted testimony to its Motion. See Mot., Ex. C at
83-109. No reasonable interpretation of the testimony supports any inference that Dr.
Waterman’s conclusions extended beyond January 2011.
Plaintiffs then quote two sentences from the twenty-seven page excerpt in which Dr.
Waterman speculates about opinions he “would” render about behavior outside of January 2011
“if” he had any basis to do so. Opp. at 6; see Mot., Ex. C at 83:22-84:9 (“. . . and then I would
say to the extent that the world was similar before January, for example, December, that . . . if I
had no reason to believe that the world had changed dramatically . . . then that the results I
provided would give one a sense of what was likely happening prior to that point.”); id. at 84:1185:10 (“[to] the extent to which a month of December of 2010 or November 2010 would be
expected to be similar . . . then my sense would be that this would me good understanding of
what was – what was likely to have happened beforehand.”). In their zeal, Plaintiffs even omit
the first half of first sentence above: “My numbers that I present in the report are definitely
statements specifically about January, and then I would say . . .”). Speculation from a witness
about what he “would” say “if” he had grounds is not expert testimony, particularly when
explicitly disavowed over a dozen times.
Even if Dr. Waterman “would” have liked to testify more broadly, he disclaimed any
knowledge of activities at Hotfile prior to January 2011 necessary to support such testimony.
See Mot., Ex. C at 93:3-24 (“There are many aspects of the Hotfile site that I am not aware of or
the Hotfile business because that’s not my role within this case. My role within this case is to
provide an opinion as to, in the month of January 2011, the extent of or the proportion of files

2

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
that were associated with infringing content. So it is – I will acknowledge there is probably a
million things about Hotfile as a business that I don’t know, but I don’t know them because I felt
that for the point or the purposes of me being retained in this case those weren’t relevant to the
decisions that I came up with.”); see also id. at 91:18-102:24 (cataloguing specific pre-2011
activities of Hotfile of which Dr. Waterman remained unaware). Plaintiffs cannot now credibly
claim that Dr. Waterman opined on matters of which he had no awareness.
Ultimately, even if Dr. Waterman’s original report addressed alleged infringement on
Hotfile prior to January 2011 – which is nowhere near the case – Plaintiffs’ repeated denials that
Dr. Waterman’s rebuttal report is “new” accomplishes nothing. Plaintiffs cannot properly serve
a “rebuttal” report to try to prop up a prior opinion. See Nelson v. Freightliner LLC, No. 5:01cv-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.”); Cook v. Rockwell Int’l
Corp., 580 F. Supp. 2d 1071, 1169-70 (D. Colo. 2006) (same). Plaintiffs do not even attempt to
distinguish this authority cited by Hotfile in its opening brief. Mot. at 11-12. 1
2.

Proffered For Rehabilitation Purposes, Dr. Waterman’s Report Is Not
“Intended Solely To Contradict Or Rebut Evidence On The Same
Subject Matter” As Professor Boyle

To qualify as a rebuttal report permitted to be served after the deadline for original expert
reports, the report must be “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). Dr. Waterman’s
submission in no way resembles a rebuttal report.

1

Plaintiffs cite Lalli v. U.S. Life Ins. Co., No. 10-3591, 2011 WL 2601795, at *2 (D. Minn. July
1, 2011), for the proposition that Dr. Waterman may “build upon his initial report in rebuttal.”
Opp. at 5. However, the rebuttal physician in Lalli had not provided an initial report, so Lalli
cannot possibly stand for the proposition cited. 2011 WL 2601795 at *2. Moreover, the rebuttal
physician in Lalli engaged in “clear rebuttal” – he testified that the deceased’s hematoma caused
death where defendants’ experts asserted it did not. Id. Here, Dr. Waterman is not “more fully
explaining [Plaintiffs’] existing theories” regarding alleged infringement in January 2011, but
rather is propounding a new opinion regarding alleged infringement over the preceding twentytwo months. The same reasoning distinguishes S.W. v. New York, No. CV 2009-1777, 2011 WL
3038776, at *4 (E.D.N.Y. July 25, 2011) (cited in Opp. at 5).
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CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
a.

In His “Rebuttal” Report, Dr. Waterman Mentions Professor Boyle
Only To Agree With Him

Dr. Waterman’s “rebuttal” report only mentions Professor Boyle in one paragraph – and
then only to agree with him. First, Dr. Waterman states, “as Prof. Boyle acknowledges, he did
not attempt to analyze a representative statistical sample . . . ”). Mot., Ex. D ¶ 2. Professor
Boyle agrees. Mot., Ex. B. ¶¶ 7, 34. Second, Dr. Waterman states that Professor Boyle
“provides no basis to draw conclusions . . . about the level of infringing activity on Hotfile
generally.” Mot., Ex. D ¶ 2. Again, Professor Boyle agrees. See Mot., Ex. 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.”). Third, Dr. Waterman states that Professor Boyle does not
compare the number of downloads of non-infringing files to the number of all downloads on
Hotfile. Mot., Ex. D ¶ 2. Professor Boyle explicitly attested to this fact weeks in his original
report. Mot., Ex. B. ¶ 34; Boyle Dep. at 26:10-13 (attached hereto as Exhibit L). This is no
rebuttal.
b.

Dr. Waterman Invokes Professor Boyle As A Pretext For
Attempting To Rehabilitate His Original Report

Rebuttal reports must “solely” contradict or rebut opposing expert testimony. Fed. R.
Civ. P. 26(a)(2)(C)(ii). Dr. Waterman’s report fails to make any mention of Professor Boyle
after the second paragraph because it exists to reverse the damage caused when Dr. Waterman
confined his opinion to one month of Hotfile’s three-year existence. See supra Part II(A)(1).
This report’s sole purpose is rehabilitation – not rebuttal.
Following an introductory first paragraph and a second paragraph devoted to agreement
with Professor Boyle, see supra Part II(A)(2)(a), Dr. Waterman’s third paragraph defends the use
of statistical data regarding January 2011 to opine about alleged infringement on Hotfile at other
times. Mot., Ex. D ¶ 3. However, Professor Boyle never even remotely approaches this subject
in his report, and indeed would have had no reason to do so given that he had never seen Dr.
Waterman’s statistical analysis of January 2011 prior to serving his report. Mot., Ex. B.
Similarly, Dr. Waterman’s fourth paragraph discusses the “strong reasons for choosing January
2011 as the period of time from which to draw the sample” – a subject having nothing to do with
Professor Boyle. Mot., Ex. D ¶ 4; id., Ex. B. Dr. Waterman’s fifth paragraph addresses “the

4

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
development of the Hotfile site over time” – another topic which Professor Boyle never
broached. Mot., Ex. D ¶ 5; id., Ex. B. Six more paragraphs follow, all attempting to justify
extrapolation of Dr. Waterman’s original 90.3% infringement rate backwards from January 2011.
Mot., Ex. D ¶ 6-11. Plaintiffs do not even attempt to connect Professor Boyle to any of these
assertions, either in the report, Professor Boyle’s two depositions, or their Opposition brief here.
Indeed, in the meet-and-confer discussions preceding this Motion, Plaintiffs conceded that Dr.
Waterman’s “rebuttal” report arose to address his deposition testimony in contrast to any opinion
of Professor Boyle. See Mot., Ex. E at 1 (“You kept hypothesizing to him [in deposition] events
that could change [the alleged infringement rate] – events he said he had not considered. . . . I do
not think we were required to submit a [second] report, but since it was such a focused part of
your deposition examination, we opted to give you the benefit of knowing the additional
materials he reviewed . . . .”) (emphasis added). Despite Plaintiffs’ efforts here, rebutting oneself
is not grounds for serving a rebuttal report.
c.

Plaintiffs Make No Showing That Dr. Waterman “Rebuts”
Professor Boyle

Plaintiffs assert that Dr. Waterman, a statistician, rebuts Professor Boyle, a copyright law
professor, because the two witnesses address “the same subject matter” of incidence of
infringement on Hotfile. See Opp. at 4. This is not credible.
Professor Boyle opines that Hotfile users violated no copyright law when downloading
the two “open source” software programs representing the two most downloaded files on Hotfile.
Mot., Ex. B ¶ 9(i). He further opines that users of Hotfile violated no copyright law when
downloading six identified open source programs more than 1.7 million times. Id. 2 In so
opining, he relies on his decades of experience studying copyright law and communication
policy on the internet. Id. ¶¶ 2-3.
Dr. Waterman concludes in his rebuttal report that his original assessment of an
infringement rate of 90.3% “likely” applies to some unspecified time period prior to January
2011. Mot., Ex. D ¶ 10. He relies upon his twenty years of experience as a statistics instructor.
Id. ¶ 1.

2

Professor Boyle also opines about Hotfile’s “affiliate” program and other matters not raised by
Plaintiffs here. Id. ¶ 6; Opp. at 4-7.
5

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
Dr. Waterman’s report is no rebuttal to Professor Boyle. One does not “contradict or
rebut” a legal analysis of specifically-identified files by attempting to bolster one’s allegedlypreexisting statistical analysis of other files. 3 Dr. Waterman and Professor Boyle do not even
occupy fields that have any relationship to one another: Dr. Waterman disclaims any knowledge
of law while Professor Boyle disclaims expertise in statistics. Mot., Ex. C at 53:13-17; Boyle
Dep. at 13:10-11 (Ex. L).
Plaintiffs attempt to justify Dr. Waterman’s “rebuttal” report based upon four terms used
by Professor Boyle over the course of his 7,100-word opening report: “high volume,”
“substantial,” “popular,” and “common.” Opp. at 4. Thus, Professor Boyle testified that 1.7
million downloads of six open source programs represented a “high volume” and “substantial”
number in absolute terms. Boyle Dep. at 54:14-57:14 (Ex. L). However, he made clear that he
did not attempt to compare this volume to any other uses of Hotfile, and he explicitly disclaimed
any statistical analysis. Mot., Ex. B. ¶¶ 7, 34. Plaintiffs cannot credibly purport to rebut the fact
of 1.7 million downloads of six specifically-identified files with a new statistical survey of other
files downloaded on Hotfile, especially given Professor Boyle’s disclaimers. E.g., Boyle Dep. at
56:9-11 (“[1.7 million downloads] would be a substantial use, regardless of the total number of
downloads from the Hotfile service”) (Ex. L) (emphasis added).
The same reasoning applies to Professor Boyle’s use of the words “popular” and
“common,” which he used to denote that two of the files he analyzed were the most downloaded
files on Hotfile. Boyle Dep. at 57:15-58:23 (Ex. L). Nothing from Plaintiffs’ belated statistical
analysis in any way “contradicts or rebuts” Professor Boyle’s conclusion that the two most
downloaded files on Hotfile infringed no copyrights.
Plaintiffs contend that Dr. Waterman and Professor Boyle addressed the same subject
matter through “different methodologies.” Opp. at 5 (citing TC Sys. Inc. v. Colonie, 213 F. Supp.
2d 171, 180 (N.D.N.Y. 2002) and Park West Radiology v. CareCore Nat. LLC, 675 F. Supp. 2d
314, 326 (S.D.N.Y. 2009)). In TC Systems, two opposing experts addressed the same question –
whether a municipality could track costs associated with public rights-of-way – from an
accounting perspective and an engineering perspective. Id. The court allowed the engineer to
rebut the accountant. Id. at 181; see Park West, 675 F. Supp. 2d at 326 (same effect). Here,
3

Notably, Plaintiffs’ expert on copyright law agreed with Professor Boyle whenever the two
opinions intersected regarding specific files. E.g., Zebrak Rep., Ex. C at 19, 24, 65.
6

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
however, the experts address different questions: Plaintiffs seek to rebut Professor Boyle’s legal
conclusion about the lawfulness of downloading identified files over 1.7 million times with Dr.
Waterman’s statistical conclusion regarding the alleged infringement rates over twenty-three
months. By Plaintiffs’ logic, all experts on this case could postpone disclosure of their final
reports until the rebuttal deadline since they all opine about “the extent of infringement versus
non-infringement on Hotfile.” Opp. at 4; see Cromarty Rep. ¶ 32 (“Defendants’ systems offer a
substantial non-infringing benefit”); Zebrak Rep. ¶ 10 (studying alleged infringement rate);
Foster Rep. ¶¶ 21, 35 & Ex. C (addressing measures “to reduce infringing content on the
website” and charting users suspended for infringement); Lynde Rep. ¶ 18 (discussing degree of
error in Plaintiff Warner’s infringement claims). Dr. Waterman and Professor Boyle differ in
more than “methodology.” No amount of statistical analysis by Dr. Waterman can have any
bearing on the legality under federal law of downloading the files analyzed by Professor Boyle.
B.

No Substantial Justification Exists For Dr. Waterman’s New Opinion

The proponent of a belated expert report bears the burden of proving its violation of the
rules to be “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). Here, Plaintiffs
assert that “Dr. Waterman’s rebuttal cites to new evidence about Hotfile’s operations that was
unavailable until after his initial report was submitted.” Opp. at 8. This is demonstrably false.
Hotfile has already proven that the exhibits produced with Dr. Waterman’s rebuttal report
and the materials identified as “Other Documents Considered” all remained available to
Plaintiffs for up to a year prior to his initial report. Mot. at 12-14. Plaintiffs do not dispute this
assertion. Opp. at 9. Instead, Plaintiffs contend in their Opposition that Dr. Waterman reviewed
other unspecified evidence not available at the time of his initial report regarding “events in the
history of Hotfile.” Id.
While law forbids Plaintiffs from making Hotfile guess as to the evidence relied upon by
their expert, Fed. R. Civ. P. 26(a)(2)(B)(ii), Dr. Waterman at least undertook to produce with his
rebuttal report a “timeline” of events at Hotfile upon which he relied (attached hereto as Exhibit
M). As shown below, Hotfile produced evidence of each of these events long before Dr.
Waterman produced his initial report on November 18, 2011.
Event From Waterman “Timeline”
Hotfile Launch (February 2009)

Date Of Disclosure By Hotfile
June 2, 2011. See Response To Plaintiffs’
Interrogatory No. 2 at 6 (attached as Ex. N).

7

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
Event From Waterman “Timeline”
Email address for notices posted on
website (April 2009)
Special Rightsholder Accounts; claimed
blocking of files based on hash (August
2009)
Registered DMCA agent with Copyright
Office (December 2009)
Termination of certain users following
Liberty Media litigation (January 2010)
DMCA policy with name of registered
agent posted on website (May 2010)
Perfect 10 files complaint against Hotfile
(September 2010)
Plaintiffs file complaint against Hotfile;
implementation of strike system for repeat
infringers (February 2011)

Date Of Disclosure By Hotfile
June 2, 2011. Id.
August 26, 2009. See E-mail from M.
Bentkover to Hotfile Corp. of 8/26/09
(attached hereto as Exhibit O);
February 28, 2011. Docket No. 30 at 6.
June 2, 2011. See Response To Plaintiffs’
Interrogatory No. 2 at 6 (Ex. N).
October 3, 2011. See HF02855583.
June 2, 2011. See Response To Plaintiffs’
Interrogatory No. 2 at 7 (Ex. N).
February 10, 2011. See WARNER025767
(attached hereto as Exhibit P).
February 8, 2011. Docket No. 1 (Compl.)
February 22, 2011. Docket No. 16-6 at 2-3.
February 28, 2011. Docket No. 30 at 7.

Plaintiffs cannot even come near discharging their burden of proving substantial justification for
Dr. Waterman’s belated report.
C.

Only Preclusion Can Remedy Plaintiffs’ Sandbagging Absent Reopening Of
Discovery, Which Hotfile Cannot Afford

Plaintiffs cannot credibly deny the prejudice caused to Hotfile by their discovery abuse.
Hotfile relied upon Dr. Waterman’s restriction of his opinion to January 2011 as set forth in two
explicit statements in his original report, a dozen sworn confirmations in deposition, and
repeated verifications under oath that he would not change course. Waterman Rep. ¶¶ 7, 9 (Mot.,
Ex. A); Waterman Dep. at 83:8-109:13, 294:9-295:20 (Mot., Ex. C). On this basis – and
knowing that Plaintiffs accepted their burden of proving the scale of alleged infringement on
Hotfile in Plaintiffs’ prima facie case as opposed to their rebuttal case 4 – Hotfile deposed each of
Plaintiffs’ twelve witnesses, knowing that it need ask no questions that could bear upon any
extrapolation of Dr. Waterman’s alleged infringement rate beyond January 2011. See Mot. at

4

Arista Records LLC v. Usenet.com, 633 F. Supp. 2d 124, 151-152 (S.D.N.Y. 2009); MGM
Studios, Inc. v. Grokster, 454 F. Supp. 2d 966, 985 (C.D. Cal. 2006); Columbia Pictures v. Fung,
2009 WL 6355911, at *17 (C.D. Cal. Dec. 21, 2009). Plaintiffs have cited these cases to Hotfile
since February 2011. See Docket No. 14 at 20; Opp. at 2 n.1.
8

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
15-16. 5 Hotfile also prepared for and participated in six days of questioning of its witnesses.
Hotfile chose not to obtain testimony from industry experts regarding the instability of online
user behavior over time, and declined to ask its existing technology expert to consider the
inapplicability of Dr. Waterman’s original conclusion beyond January 2011. Id. Hotfile asked
its own statistics expert, Dr. Daniel Levy, to rebut Dr. Waterman’s original report – not knowing
that thirty-six minutes after disclosure of that report that Dr. Waterman would expand the scope
of his opinion by a factor of twenty-two. Since November, Hotfile even based its approach to
settlement on the understanding that Plaintiffs could only level allegations of 90% infringement
in relation to one month of Hotfile’s operations. Discovery and the court-ordered mediation are
now concluded. Hotfile cannot undo its past reliance or recover its lost opportunities effectuated
by Plaintiffs’ reversal absent delay of the current trial schedule – which Hotfile does not seek and
cannot reasonably afford. Id.
Plaintiffs do not even attempt to address these harms in their papers. Opp. at 7-9.
Instead, Plaintiffs argue that it would be “pointless” to strike Dr. Waterman’s report since he will
respond to Dr. Levy’s report at trial by testifying that his conclusions apply to periods other than
January 2011. Opp. at 8. However, “the ability to simply cross-examine an expert concerning a
new opinion at trial is not the ability to cure” – even if that new opinion purportedly arises in
response to opposing expert testimony. Southern States Rack And Fixture, Inc. v. SherwinWilliams Co., 318 F.3d 592, 594, 598 (4th Cir. 2003). 6 Having disclaimed analysis of any month
other than January 2011 in his original report, Dr. Waterman cannot properly respond to Dr.
Levy’s confirmation of this fact by broadening his opinion by twenty-two months. See Levy
Rep. [Mot., Ex. H] at 4-5 (“Dr. Waterman makes it clear that . . . his analysis provides no
scientific evidence . . . for any month other than January 2011.”) The Federal Rules permit
opening reports and rebuttal reports, not an endless cycle. Nelson v. Freightliner LLC, No. 5:01cv-266, 2003 WL 25781423, at *2 (M.D. Fla. Apr. 23, 2003). No case cited by Plaintiffs permits

5

Plaintiffs argue that their witnesses know nothing of Hotfile’s development. Opp. at 8 n.4.
While untrue – Plaintiffs have produced 16,230 documents regarding Hotfile – Plaintiffs ignore
Hotfile’s lost opportunity to question Plaintiffs about industry trends and online user behavior.
6
In addition, having Dr. Waterman offer opinions at trial that were not contained in his initial
report would be improper. See Rule 26(a)(2)(B)(1). Hotfile objects to (and will expect to move
to strike or exclude) any testimony by Dr. Waterman that exceeds his initial report. See Fed. R.
Civ. P. 37(c).
9

CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
an expert to testify one way on direct, confirm that testimony over a dozen times on cross, and
then contradict himself on rebuttal.
Plaintiffs also deny any prejudice to Hotfile because Hotfile can depose Dr. Waterman.
Opp. at 9. This could be said in essentially any case. Here, only days remain before the first
summary judgment motions, and only four months remain before trial. See id. at 1079, 1168,
1171 (striking report despite opportunity to depose expert during nine months before trial);
Nelson v. Freightliner LLC, No. 5:01-cv-266, 2003, WL 25781423, at *1, 4 (M.D. Fla. Apr. 23,
2003) (striking report served four months before trial); Beller v. United States, 221 F.R.D. 696,
697, 701-702 (D.N.M. 2003) (same). If parties could ignore expert deadlines provided that they
made their witnesses available for deposition after the close of discovery, scheduling orders
would lack meaning. As the Eleventh Circuit has ruled – contrary to Plaintiffs’ position here –
compliance with Rule 26 is “not merely an aspiration.” 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). Disregard of court-ordered deadlines has consequences. See Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (“A scheduling order is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded by counsel without peril.”).
III.

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

Dr. Richard Waterman served on January 6, 2012.
DATED: January 30, 2012

Respectfully submitted,

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

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CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
And

/s/ Andrew Leibnitz
Roderick M. Thompson, Esq. (admitted pro hac vice)
Email: [e-mail]
Andrew Leibnitz, Esq. (admitted pro hac vice)
Email: [e-mail]
Anthony P. Schoenberg, Esq. (admitted pro hac vice)
Email: [e-mail]
Deepak Gupta, Esq. (admitted pro hac vice)
Email: [e-mail]
Janel Thamkul, Esq. (admitted pro hac vice)
Email: [e-mail]
FARELLA BRAUN + MARTEL LLP
235 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480
And
Valentin Gurvits, Esq. (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

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CASE NO. 11-CIV-20427-WILLIAMS/TURNOFF
CERTIFICATE OF SERVICE
I hereby certify that on January 30, 2012, a true and correct copy of 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.

Karen L. Stetson, Esq., 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. (pro hac vice)
Senior Content Protection Counsel
Email: [e-mail]
Motion Picture Assoc. of America
15301 Ventura Boulevard, Bldg. E
Sherman Oaks, CA 91403-5885
Telephone: [phone]

Steven B. Fabrizio, Esq. (admitted pro hac vice)
Email: [e-mail]
Duane C. Pozza, Esq. (admitted pro hac vice)
Email: [e-mail]
Luke C. Platzer, Esq. (admitted 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
By: /s/ Janet T. Munn
Janet T. Munn

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