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

Filing 297

MOTION Warner's Motion to Permit use at Trial or Summary Judgment of Titov Ex. 27 in its Entirety [PUBLIC REDACTED VERSION] by Warner Bros. Entertainment Inc.. (Stetson, Karen)

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.
/
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/
WARNER’S MOTION AND MEMORANDUM OF LAW TO PERMIT USE AT TRIAL
OR SUMMARY JUDGMENT OF TITOV EX. 27 IN ITS ENTIRETY

PUBLIC REDACTED VERSION

At the January 13, 2012 hearing in this matter, Magistrate Judge Turnoff granted in part
and deferred in part Warner’s Motion to Compel the production of Titov Exhibit 27, a deposition
exhibit about which Warner questioned Mr. Titov at his deposition without objection and which
Hotfile has tried to claw back.1

The spreadsheet encompasses 297 pages; a subset consisting of the first 32 pages was
marked as a deposition exhibit.2 Magistrate Judge Turnoff held that the first 32 pages were now
“part of the record in this case,” and agreed that Warner “may use the deposition exhibit and the
deposition testimony.” Transcript of Status Conference Hearing Before the Honorable William
C. Turnoff (“1/13/12 Tr.”) (attached hereto as Exhibit A) at 28:10-11; 32:11-12. While
observing that he thought “the better argument is with the plaintiff,” 1/13/12 Tr. at 21:10, he held
that the proper procedural vehicle for admitting the entire document, as opposed to merely the
excerpt used at the deposition, would be by means of an evidentiary motion to the Court. See
Omnibus Order, Docket No. 227 at 2 (“any party seeking to use such document shall file the
appropriate pleading, e.g. a motion in limine for use at trial.”); 1/13/12 Tr. at 31:13-14 (“if
[Warner] want[s] to use the full document, that document is going to be under seal” and would
need to be addressed by means of a separate evidentiary motion).
In accordance with Magistrate Judge Turnoff’s instructions, Warner now moves for such
permission, which should be granted:
First, Hotfile’s production of the spreadsheet was not inadvertent – it had produced the
document on two separate occasions months apart, while repeatedly taking the legal position that
analyses of this exact type were not privileged. Hotfile’s misuse of the clawback procedure in
1

Hotfile has separately objected to Magistrate Turnoff’s Order, see Hotfile’s Objections to
Magistrate Judge’s Order Regarding Plaintiff’s Motion to Compel Titov Deposition Exhibit 27
(filed January 27, 2012). Warner is responding to Hotfile’s Objections – which take the
unfortunate tack of seeking to escalate a routine discovery dispute into misguided accusations of
misconduct – in a separate filing at the appropriate time. Suffice to say that Hotfile’s false
accusations concerning use of Titov Ex. 27 at the deposition have no bearing on this motion,
which is premised on Hotfile’s waiver prior to the deposition.

2

For purposes of this Motion, Warner uses the term “Titov Ex. 27” to refer to the entire
document unless otherwise indicated.
1

this case – apparently failing to engage in meaningful privilege review of its documents prior to
production, and then sandbagging Plaintiffs with mass clawbacks on the eve of depositions and
months after the documents had been produced and reviewed – does not satisfy the legal
requirements of inadvertence.
Second, Warner had had the entire spreadsheet in its possession since June, without any
reasonable basis to think that Hotfile would later claim work product over it, and had (by the
time of the clawback) integrated it into Warner’s case strategy – including not only its deposition
preparation, but also the Answer it had filed in early November. As Magistrate Judge Turnoff
noted, “the bottom line is the cat is already out of the bag already,” 1/13/12 Tr. at 31:18-19;
indeed “because of the time lag” and “the use of the documents,” id. at 21:11-12, the cat had
been out of the bag long before Titov was deposed.
Third, Hotfile’s waiver of any work product protection affects the full, 297-page
spreadsheet no differently than the excerpt counsel physically carried to Bulgaria and marked at
the deposition. It has been common practice in this case to use shorter excerpts from voluminous
documents introduced at depositions.
Under such circumstances, work product has been waived – over the entire document.
Indeed, Warner is prejudiced by having only a partial segment of the document, rather than the
document in its entirety.

Hotfile can no longer
reasonably ‘unring the bell’ by clawing back a document that had been in the possession of
opposing counsel since early in the litigation.
In addition, due to the upcoming filing of motions for summary judgment (and Hotfile’s
filing of objections to Magistrate Judge Turnoff’s Order), Warner requests that the Court
expedite briefing on this motion to align with the same schedule as Hotfile’s Objections, with
opposition briefs filed February 10, 2012, and replies filed February 17, 2012.
BACKGROUND
On two separate occasions in discovery four months apart (June 17, 2011, then again on
October 14, 2011), Hotfile produced in discovery

2

. See Declaration of Steven B. Fabrizio in Support of Warner’s Motion to
Compel the Production of Titov Deposition Exhibit 27 (“Fabrizio Decl.”), Docket No. 211-1, ¶
3.

.

3

167:2-167:16; 167:23-168:12 (Fabrizio Decl., Docket No. 211-1, Ex. A).
4

See Titov Tr.

Hotfile’s Objections to Magistrate Judge Turnoff’s Order include the new argument, never
presented to the Magistrate Judge, that Warner “should have known” that Hotfile would later
assert work product over the spreadsheet. See Hotfile’s Objections to Magistrate Judge’s Order
Regarding Plaintiff’s Motion to Compel Titov Deposition Exhibit 27 (filed January 27, 2012) at
19-20.

3

5

Warner also integrated the document into its
deposition strategy and preparation. See Fabrizio Decl., Docket No. 211-1, ¶ 3.

Warner will
address, in its upcoming Response to Hotfile’s Objections to Magistrate Judge Turnoff’s Order,
Hotfile’s argument that the “inadvertent” nature of Hotfile’s production of Titov Ex. 27 was
apparent “on its face.”
5

See Answer and Defenses of Warner Bros. Entertainment, Inc. to Hotfile’s Second Amended
Counterclaim, Docket No. 163, at 8-9 (emphasis added):
3. Hotfile’s Counterclaim is barred in whole or in part by the doctrine of unclean
hands. Upon information and belief, the substantial majority of the files that
Hotfile claims Warner wrongfully took down were in fact infringing and
were not authorized by the copyright owners to be distributed through or
hosted on Hotfile. Any “harm” Hotfile suffered from the removal of those files
is limited to Hotfile’s losing the ability to profit from the infringement of the
works of those other copyright owners. Because of unclean hands, Hotfile’s
Counterclaim is barred.
5. Hotfile’s Counterclaim is barred in whole or in part by the doctrines of laches
and estoppel. Upon information and belief, Hotfile knew of the occasional
mistaken takedown requested by Warner and never informed Warner, at a
time when Warner could have used that information to prevent future errors
of that kind and otherwise continued improving the accuracy and reliability
of its process for issuing notifications requesting the removal of infringing
files. Instead, Hotfile allowed such errors to continue in order to have
something to sue Warner over and with which to embarrass Warner as a
response to Warner’s copyright infringement claims against Hotfile. Because
of laches and estoppel, Hotfile’s Counterclaim is barred.

4

Titov’s deposition took place in Sofia, Bulgaria the first week of December. The days
between November 28 and December 3 were some of the busiest in this litigation. They were
the last days before the parties embarked on a schedule of 23 depositions in 15 business days. In
the week before Titov’s deposition – including in an email sent while Warner’s counsel was
about to board a plane to Bulgaria – Hotfile deluged Plaintiffs with mass clawbacks, clawing
back sixty-four documents by merely listing strings of Bates numbers without any descriptions
of the purportedly clawed-back documents. See Fabrizio Decl., Docket No. 211-1, ¶ 8. As
Magistrate Judge Turnoff made clear, attempting to identify and destroy clawed back documents
under those circumstances is exceptionally challenging. See 1/13/12 Tr. at 29:16-22 (noting that
“[t]he fact is this is a huge complicated case,” that the clawed-back document “has been out there
for [Plaintiffs’] paralegals and associates and everybody else, the investigators to deal with” and
that “[i]t would probably be difficult, if not impossible to find out exactly what use it has been
put to . . . .”).
On the first day of Titov’s deposition – for which Warner’s counsel needed to physically
carry his deposition exhibits to Bulgaria due to scheduling constraints and the absence of
overnight shipping options – Warner used as a deposition exhibit the first 32 pages of the
document. Defendants’ lead counsel was given a copy of the document and did not object to the
questioning or the introduction of the document on the basis of work product. See Fabrizio Decl.
Ex. A & ¶¶ 6-10. Only after the deposition concluded for the day did Hotfile’s counsel claim
that the spreadsheet was work product and insist that it be clawed back.
On December 12, 2011, Warner filed a motion to compel production of the clawed-back
document on the basis that it was not properly work product, and that any work product
protection had been waived, first through Defendants’ production of the document (which was
not inadvertent) and then again by Defendants’ failure to object to its use at the deposition. See
Docket No. 180. Not until the evening of December 23rd – nearly three weeks after the
deposition and two weeks after Warner’s motion to compel – did Hotfile’s counsel raise that
Titov Ex. 27 had been part of Hotfile’s mass clawbacks in the days leading up to the deposition.
See Declaration of Roderick Thompson in Support of Counterclaimant Hotfile Corp.’s
Opposition to Warner’s Motion to Compel the Production of Titov Deposition Ex. 27
(“Thompson Decl.”), Docket No. 206-1, at Ex. 4.

5

Magistrate Judge Turnoff, after considering extensive briefing and argument at a hearing
on January 13th, granted Warner’s motion in part and deferred it in part. Noting Warner’s
argument that the production of the full document had not been inadvertent, the “time lag,” and
the “use of the documents,” 1/13/12 Tr. at 21:11-12, he observed that the Court “would be
justified and I think a higher and wiser authority would probably agree that [Warner’s] motion
should be granted in toto…” 1/13/12 Tr. at 31:9-31:12.6
Ultimately, however, the Magistrate Judge’s ruling was based on waiver at the
deposition, noting that “the bottom line is the cat is already out of the bag already.” Id. at 31:1819. Observing that the 32-page excerpt of the document physically marked as an exhibit at
Titov’s deposition was “part of the deposition that was made a part of the record in this case,” id.
at 18:10-11, he permitted Warner to make use of the excerpt. See 1/13/12 Tr. at 32:11-16
(agreeing that Warner “may use the deposition exhibit and the deposition testimony”). He then
ordered Hotfile to file a copy of the entire 297-page document with the Court, ruling that the
proper procedure to admit the full document would be a motion addressed to the Court. Id. at
32:13-16 (agreeing that “if [Warner] want[s] to use the full document, that document is going to
be under seal”); see also Omnibus Order, Docket No. 227 at 2 (“any party seeking to use such
document shall file the appropriate pleading, e.g. a motion in limine for use at trial”).
ARGUMENT
I.

HOTFILE’S PRODUCTION OF TITOV EX. 27 WAS NOT LEGALLY
INADVERTENT.
Although Hotfile undoubtedly waived work product at the deposition (see Part II infra),

Hotfile’s waiver preceded the deposition itself. The overwhelming authority dictates that
Hotfile’s production of Titov Ex. 27 cannot be excused an “inadvertent.”

6

As discussed below, Magistrate Judge Turnoff’s observation is more than amply supported.
Warner had a copy of the document for month than five months before Hotfile clawed it back.
Moreover, the second time that Hotfile produced the 297-page spreadsheet, it did so in a
production of only 83 documents. Since then Hotfile has clawed back 10 of those 83 documents
– or one out of every eight documents from that tiny production. Hotfile cannot credibly claim
inadvertence.

6

A.

Hotfile Failed to Meet its Burden of Proof in the Proceedings Before
Magistrate Judge Turnoff.

It is well-established that “[w]hen a producing party claims inadvertent disclosure, it has
the burden of proving that the disclosure was truly inadvertent.” Bd. of Trs., Sheet Metal
Workers’ Nat'l Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845, 850
(E.D. Mich. 2010) (quotation marks omitted); see also, e.g., Peterson v. Bernardi, 262 F.R.D.
424, 428 (D.N.J. 2009) (the disclosing party “has the burden of proving that his documents were
inadvertently produced”). As one court explained, in a finding directly applicable to Hotfile:
Although Defendants claimed they inadvertently produced documents, they
failed, with the exception of stating the number of documents produced, to
support that assertion with facts. Without such information, the Court
cannot find that the Defendants met their burden to show either that the
disclosure was inadvertent, or that Defendants took reasonable steps to
prevent disclosure.
Comrie v. Ipsco, Inc., No. 08C3060, 2009 WL 4403364, at *2 (N.D. Ill. Nov. 30, 2009).
In proceedings before Magistrate Judge Turnoff, Hotfile did not even attempt to meet its
burden. Other than reciting the total number of document produced (a number that, as described
below, is very misleading), the attorney declaration submitted by Hotfile provided absolutely no
information as to what specific efforts were taken to prevent disclosure of allegedly privileged
documents, or why those efforts were reasonable in context of the case. See Thompson Decl.,
Docket No. 206-1 (“Thompson Decl.”) ¶ 2 (simply reciting number of documents produced).
Courts routinely refuse to find that a production of a privileged document was
“inadvertent” under such circumstances. For example, in Amobi v. D.C. Dept. of Corr., 262
F.R.D. 45, 54-55 (D.D.C. 2009) (emphasis added; citation omitted), the court held:
Defendants do not provide the court with any indication of the methodology
used to review documents for privilege, but only vaguely refer to several
reviews of the documents to be produced. . . . Hence, the efforts taken are
not even described, and there is no indication of what specific efforts were
taken to prevent disclosure, let alone any explanation of why these efforts
were, all things considered, reasonable in the context of the demands made
upon the defendants. Instead, ‘the court is left to speculate what specific
precautions were taken by counsel to prevent this disclosure.’… Hence,
defendants do not meet the burden of proving that the privilege was not
waived in regards to the memorandum.
Peterson, 262 F.R.D. at 429 (emphasis added; brackets in original) is equally applicable:

7

Plaintiff’s moving papers only mention one step that was taken to prevent
an inadvertent error: “[a]t each time [document production], plaintiff’s
counsel engaged in a privilege review.” … However, plaintiff does not
state when his review occurred, how much time he took to review the
documents, what documents were reviewed, and other basic details of the
review process. The Court does not accept plaintiff’s bare allegation that he
conducted a “privilege review” as conclusive proof that he took reasonable
steps to prevent an inadvertent production.
See also, e.g., Figueras v. Puerto Rico Elec. Power Auth., 250 F.R.D. 94, 97 (D.P.R. 2008)
(citation omitted) (rejecting claim of inadvertent production because defendant “has provided no
straightforward explanation of the steps taken to ensure that no privileged document would be
produced beyond the perfunctory statement that all documents produced were reviewed by
counsel ‘to the best of their ability’”).
Here, rather than proffer evidence that its production was truly inadvertent, Hotfile
repeatedly suggested the contrary – that it produced documents without taking reasonable
precautions “because it knew that the Stipulated Protective Order allowed for the prompt and
mandatory return of inadvertently produced documents.” Opposition of Hotfile to Warner’s
Motion to Compel Titov Exhibit 27, Docket No. 206, at 10; see also id. at 3; Thompson Decl. ¶ 7
(similar).7 That sort of abdication of responsibility turns the concept of “inadvertent production”
on its head.
The bulk of Hotfile’s Opposition before Magistrate Judge Turnoff argued that Hotfile did
not subjectively intend to produce Titov Ex. 27 (or the many other clawed back documents).
However, as courts have made clear, and Magistrate Judge Turnoff recognized, a party’s
“subjective intent is not controlling. All inadvertent disclosures are by definition unintentional.”
Peterson, 262 F.R.D. at 429 (emphasis added); see also id. (“For the purpose of deciding
plaintiff’s motion, the Court does not question the sincerity of plaintiff’s argument that he did not
intend to produce the documents in question”); 1/13/12 Tr. at 16:7-9 (agreeing that Hotfile’s
claim that they “didn’t intend to produce it” is “always the case”).

7

Having failed to carry its burden before the Magistrate Judge, Hotfile may not seek to
supplement the record now. See Cincinnati Ins. Co. v. Cochran, 198 F. App’x 831, 833 (11th
Cir. 2006); see, e.g., Pigott v. Sanibel Dev., LLC, No. Civ. A. 07-0089-WS-C, 2008 WL
2937804, *5 n.9 (S.D. Ala. July 23, 2008) (“[i]n reviewing a magistrate judge’s nondispositive
ruling, this Court does not consider matters not placed before that judge”) (quoting U.S. Fire Ins.
Co. v. Bunge North America, Inc., 244 F.R.D. 638, 641 (D. Kan. 2007)).

8

Hotfile failed to meet its burden of proving that the production of Titov Ex. 27 was
inadvertent. Warner’s motion should be granted on that basis alone.
B.

Hotfile’s Production of Titov Ex. 27 Cannot be Excused as “Inadvertent.”

“Courts have not established a bright-line rule for determining whether a document was
inadvertently produced.” Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529
F.3d 371, 388 (7th Cir. 2008). Courts consider a myriad of factors. United States v. Pepper’s
Steel & Alloys, Inc., 742 F. Supp. 641, 643 (S.D. Fla. 1990). Here, those factors lead to the
conclusion that Titov Ex. 27 cannot be considered “inadvertently” produced.
First

, Hotfile misleadingly argued in the proceedings before Magistrate Judge Turnoff

that its production of over a million documents should excuse its production of Titov Ex. 27.
However, Hotfile produced Titov Ex. 27 for a second time on October 14, 201l, months after the
bulk of the document production in this case.8 Hotfile’s October 14 production consisted of a
total of 83 documents – not millions, not thousands, not even hundreds. Moreover, counting
Titov Ex. 27, Hotfile clawed back 10 of those 83 documents. Fabrizio Decl., Docket No. 211-1,
¶ 4. Thus, Hotfile claims to have “inadvertently” produced about one out of every eight
documents from the October 14 production. Titov Ex. 27 is not a one-page document that
arguably could have slipped through; it is 297 pages long. Hotfile’s claim of “inadvertence”
cannot stand. E.g., Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group,
Inc., 116 F.R.D. 46, 51 (M.D.N.C. 1987) (“A large number of inadvertent disclosures in
comparison to the number of documents reviewed shows lax, careless, and inadequate
procedures.”).
Second, as noted, Hotfile produced Titov Ex. 27 in two separate productions four months
apart. As one court put it, defendant’s “‘lost in the shuffle’ argument would have greater weight
had it not twice disclosed the privilege documents in different forms at different times.” United
States v. CITGO Petroleum Corp., Cr. No. C-06-563, 2007 WL 1125792, at *5 (S.D. Tex. Apr.

8

“The volume of documents involved in the production process is important only if it can be
shown to have influenced the mistaken disclosures that were made. For example, if the
disclosure in question was at the end of a massive discovery program, but not influenced by it,
the narrower context should gauge the pressure under which the client was placed.” 2 Paul R.
Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 9.74, at 573-74 (2011).
9

16, 2007); see also id. at *4 (“Evidence of multiple disclosures on multiple occasions leads the
Court to believe that Citgo did not take reasonable precautions to prevent disclosure.”).9
Third, Hotfile did not promptly identify and clawback Titov Ex. 27. One version of Titov
Ex. 27 was produced more than five months before Hotfile sent any clawback notice. Counsel
for Warner analyzed and integrated the document into its own work product, including its
deposition preparation and the affirmative defenses it asserted in its Answer. Fabrizio Decl.,
Docket No. 211-1 ¶ 3; Warner’s Answer to Second Amended Counterclaim, Docket No. 163, at
8-9. Under these circumstances, courts reject efforts to clawback documents. E.g., Scott v.
Glickman, 199 F.R.D. 174, 180 (E.D.N.C. 2001) (“[D]isclosure is complete and confidentiality
may be lost when the document is turned over and allowed to be copied, digested, and analyzed.
In such a case it has been held that the disclosure cannot be cured simply by a return of the
documents. The privilege has been permanently destroyed.”) (internal quotation marks omitted).
As one court found, summing up the present situation, “plaintiffs have had the inadvertently
produced communication for over a month and a half. During that time period, plaintiffs came to
rely upon that document as evidenced by the use of the document in the deposition of codefendant Colon. Prohibiting plaintiffs from using the document at this stage in the proceedings
would work an injustice upon them because they have already incorporated it into their pre-trial
preparation.” Figueras, 250 F.R.D. at 98.
Fourth, “the number of documents inadvertently produced is . . . highly probative of the
reasonableness of the precautions taken by the producing party.” F.C. Cycles Int’l, Inc. v. Fila
Sport, S.p.A., 184 F.R.D. 64, 78 (D. Md. 1998). Here, in a matter of a few days, Hotfile asserted
that 64 allegedly privileged documents were inadvertently produced. That is not a reasonable
number: “While plaintiff states that they did review the documents with counsel before
inspection by defendants, I find it difficult to believe that a thorough inspection was made
considering that approximately 100 documents managed to ‘slip through the cracks’ and failed
9

That Hotfile claims it treated the spreadsheet inconsistently, withholding some copies but
producing others, is not to the contrary. See Hotfile’s Opposition to Warner’s Motion to Compel
Titov Exhibit 27, Docket No. 206, at 7 (arguing that Hotfile’s withholding of other copies of the
document proves inadvertence of production). If anything, Hotfile’s inconsistent treatment of
the spreadsheet and producing it twice suggests that different reviewing attorneys representing
Hotfile had different views as to whether or not the document was work product – which is
perfectly consistent with non-inadvertent production of the produced copies, even if Hotfile may
have later changed its position upon further consideration of positions taken by Warner.
10

to be reviewed before inspection. ” Prebilt Corp. v. Preway, Inc., Civ. A. No. 87-7132, 1988
WL 99713, at *3 (E.D. Pa. Sept. 23, 1988) (emphasis added).
Finally, this is not the first time Hotfile has claimed to have inadvertently produced
privileged documents in this case, and these episodes reflect a lack of appropriate care. On July
28, 2011, Plaintiffs’ counsel observed three emails produced by Hotfile (HF02159110,
HF02159114, and HF02159220) that contained the words “work product” in the subject line.
Plaintiffs’ counsel alerted Hotfile to the emails, and Hotfile clawed them back under the
Protective Order. Yet, in the same October 14 production of 83 documents in which Hotfile
produced Titov Ex. 27, Hotfile produced the same email chains – with the words “work product”
in the subject line – again. Fabrizio Decl. ¶ 5.
II.

HOTFILE’S WAIVER OF PRIVILEGE AT THE DEPOSITION SHOULD
EXTEND TO THE ENTIRE DOCUMENT IN ANY EVENT.
As Magistrate Judge Turnoff correctly noted in granting in part Warner’s Motion to

Compel, Hotfile waived any work product protection by failing to object at Titov’s deposition to
the portion of the spreadsheet being used as an exhibit.10 This waiver should extend to the entire
document, and not just to the first 32 (of 297) pages that were physically carried to Bulgaria by
Warner’s counsel,
As Warner previously briefed, and Magistrate Judge Turnoff agreed, the use of an
excerpt of Titov Ex. 27 at Titov’s deposition without objection from counsel meant that “the cat
is out of the bag already” and that work product over the exhibit had been waived. 1/13/12 Tr. at
31:17-19. An excerpt of Titov Ex. 27 was marked as an exhibit during the Hotfile Rule 30(b)(6)
deposition and Defendant Titov testified about it without objection. See Fabrizio Decl., Docket
No. 211-1, ¶¶ 9-10 & Ex. A (Titov dep.) at 167:23-173:2. Hotfile’s lead counsel defended the
deposition and was given a copy of the exhibit at the same time as the witness. Hotfile’s counsel
did not raise a single objection to the use of the document or the questioning on it (except as to
form). Id.
Id. at 169:7-15. Hotfile did not
10

Hotfile has further waived any claim of work product over the portion of the document used at
the deposition by failing to seek a stay of Magistrate Judge Turnoff’s Order, as Warner has now
had possession of the document without restrictions on its use or analysis since January 13th.
See 1/13/12 Tr. at 34:7-9 (order takes effect immediately).
11

assert a work product objection until after the deposition had concluded for the day; in other
words, not until after Hotfile had time to evaluate the implications of Mr. Titov’s testimony. It is
hard to conceive of a clearer case of waiver. Although Magistrate Judge Turnoff deferred a
ruling on waiver with respect to the full, 297-page spreadsheet, there is no reason the complete
document should be treated any differently for waiver purposes than the first 32 pages used as an
exhibit at the deposition.
CONCLUSION
Plaintiffs respectfully request that their motion be granted, and that the Court order the
parties to file their Opposition and Reply briefs, respectively, on the same schedule as Hotfile’s
Objections to Magistrate Judge Turnoff’s Order (February 10th and 17th, 2012, respectively).
Dated: January 31, 2012

Miam
Telephone:
Facsim

Respectfully submitted,
By: /s/ Karen L. Stetson
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
i, Fl 33131
[phone]
ile: [phone]

MOTION PICTURE ASSOCIATION
JENNER & BLOCK LLP
OF AMERICA, INC.
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Luke C. Platzer (Pro Hac Vice)
Building E
1099 New York Ave., N.W.
Sherman Oaks, CA 91403
Suite 900
Phone: [phone]
Washington, DC 20001
Fax: [phone]
Telephone:
[phone]
Facsim
ile: [phone]
Attorneys for Plaintiffs

12

CERTIFICATE OF GOOD FAITH CONFERENCE
I HEREBY CERTIFY that, pursuant to Local Rule 7.1(a)(3), U.S. District Court for the
Southern District of Florida, counsel for Warner has conferred with counsel for Defendant
Hotfile Corp. in a good-faith efforts to resolve the issues raised in this Motion without court
action, but have been unable to do so.
DATED: January 31, 2011

By: /s/ Karen L. Stetson
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue, 16th Floor
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
1099
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone] Telephone:
Facsim

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
New York Ave., N.W.
Suite 900
Washington, DC 20001
[phone]
ile: [phone]
Attorneys for Plaintiffs

13

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.

/

HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 31st day of January, 2011, I served the following documents on all
counsel of record on the attached service list by means of the email addresses listed on the
Court’s ECF System:
Warner’s Motion And Memorandum Of Law To Permit The Use At Trial Or
Summary Judgment Of Titov Deposition Ex. 27 In Its Entirety
Warner’s Motion and Memorandum of Law to File Under Seal
I further certify that I am admitted pro hac vice to the United States Court for the Southern
District of Florida and certify that this Certificate of Service was executed on this date.
By: /s/ Luke C. Platzer
Luke C. Platzer

SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-WILLIAMS-TURNOFF

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
Attorney for Defendants Hotfile Corp. and
Anton Titov

Attorneys for Defendants Hotfile Corp. and
Anton Titov
BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

15

EXHIBIT A
(redacted)