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

Filing 298

REPLY to Response to Motion re 297 MOTION Warner's Motion to Permit use at Trial or Summary Judgment of Titov Ex. 27 in its Entirety [PUBLIC REDACTED VERSION] >Warner's Reply in Support of Motion to Permit Use at Trial or Summary Judgment of Titov Ex. 27 in its Entirety [PUBLIC REDACTED VERSION] filed 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 REPLY MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO PERMIT USE AT TRIAL OR SUMMARY JUDGMENT
OF TITOV EX. 27 IN ITS ENTIRETY

PUBLIC REDACTED VERSION

If Hotfile had any credible argument on the merits, it would have made it long ago. It
did not – either in its opposition or at the February 15 oral argument on this motion. The bottom
line, as this Court has observed, is that Hotfile cannot “unring the bell” on Titov Ex. 27. Hotfile
did not attempt to claw back Titov Ex. 27 until after Warner and its lawyers had the document
for five months – almost the entire discovery period in this case. In that time, Warner had
analyzed the document, had integrated the document into its case preparation, and had used the
document in devising affirmative defenses, discovery planning, and discovery itself. Indeed,
although it has destroyed its own work product in compliance with the Protective Order, Warner
already has partially conducted the analyses it seeks to introduce into evidence – and knows the
results. Hotfile sought to claw back Titov Ex. 27 only when discovery was closing, and only
after Hotfile’s lead witness gave testimony about the document (without objection) that
undermines Hotfile’s counterclaim against Warner. By happenstance or design, Hotfile has left
Warner no opportunity to “go back in time” and prepare its case anew as if Hotfile had not
produced Titov Ex. 27.
In reserving final judgment on the full 297-page version of Titov Ex. 27, the Court
observed that: “[U]nder all of the circumstances, I would be justified and I think a higher and
wiser authority would probably agree that [Warner’s] motion should be granted in toto ….”
Transcript of Status Conference Hearing Before the Honorable William C. Turnoff (“1/13/12
Tr.”) at 31:9-31:12, attached as Exhibit A to Warner’s opening brief. See Warner’s Motion and
Memorandum of Law To Permit Use At Trial Or Summary Judgment Of Titov Ex. 27 In Its
Entirety, Ex. A, filed under seal January 31, 2012. None of Hotfile’s arguments in opposition
provide reason to vary from the Court’s initial observation.
First, Hotfile’s inflammatory accusations against Warner’s counsel are truly unfounded –
as this Court already has ruled. Instead of addressing the merits of its production of Titov Ex.
27, Hotfile spends the entirety of its opposition to Warner’s motion attacking Warner’s counsel
personally with the exact same arguments Hotfile has made previously. Warner’s counsel has
honored the Protective Order and their ethical obligations. Indeed, on multiple occasions
Warner’s counsel has, on their own, brought to Hotfile’s attention documents produced by
Hotfile that appeared to be privileged.
Warner has previously explained the circumstances surrounding Hotfile’s clawback of
Titov Ex. 27. See Plaintiffs’ Reply Memorandum of Law In Support Of Motion To Compel The

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Production Of Titov Deposition Exhibit 27, filed January 5, 2012, Docket No. 211, (hereinafter
“Warner’s 1/5/12 Reply”) at 3. Hotfile’s “clawback” of Titov Ex. 27 – in its form, timing and
context – was unreasonable. Warner took all reasonable steps to comply with the Protective
Order, and did so. This Court already has rejected the argument that Warner’s counsel violated
the Protective Order, finding that “the better argument here is with the plaintiff.” 1/13/12 Tr. at
21:10. As the Court reasoned – correctly – given the months that had passed between the
production of Titov Ex. 27 and Hotfile’s claw back of the document, and given that the
document had already been integrated into Warner’s case preparation, Titov Ex. 27 “has been out
there for [Warner’s counsel’s] paralegals and his associates and everybody else, the investigators
to deal with. It would probably be difficult, if not impossible to find out exactly what use it has
been put to.” 1/13/12 Tr. at 21:7-8. In the February 15 oral argument on this motion, Hotfile
had the temerity to tell the Court that it just did not understand the gravity of Hotfile’s
arguments. Respectfully, in connection with the earlier motion on Titov Ex. 27, Hotfile spent its
entire brief and oral argument time on the argument that Warner violated the Protective Order.
The Court fully considered the argument and ruled that “the better argument is with [Warner]
here.” 1/13/12 Tr. at 21:7-8.
What Hotfile is doing – without saying so – is asking this court to grant reconsideration
of its prior ruling. Hotfile, however, has not demonstrated any ground warranting
reconsideration of the Court’s previous ruling. It has not, as required, shown “(1) an intervening
change in controlling law; (2) the availability of new evidence; [or] (3) the need to correct clear
error or prevent manifest injustice.” Ass’n For Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D.
457, 477 (S.D. Fla. 2002). Indeed, it has not even attempted to make such a showing – nor could
it on these facts.
Requests for reconsideration are “ not intended to be a tool for relitigating what a court
has already decided.” Reyher v. Equitable Life Assur. Soc., 900 F. Supp. 428, 430 (M.D. Fla.
1995). Importantly, a request for reconsideration cannot be used to “relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). “This
prohibition includes new arguments that were previously available, but not pressed.” Wilchombe

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v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (internal quotation marks omitted).
But all Hotfile does in its opposition is to rehash previously rejected arguments.1
There is a separate, and equally dispositive reason the Court should not revisit its prior
findings: Hotfile was so anxious to continue its personal attacks against Warner’s counsel that it
never stopped to realize that those accusations (initially made in connection with the 32-page
excerpt of Titov Ex. 27) have no relevance to the full 297-page version of Titov Ex. 27. Warner
did not use the 297-page version of Titov Ex. 27 at Mr. Titov’s deposition; Warner did not file
the 297-page version of Titov Ex. 27 with the Court as part of its initial motion to compel;
Warner timely destroyed its copies of the 297-page version of Titov Ex. 27 in response to
Hotfile’s clawback email; and Warner’s motion as to the 297-page version of Titov Ex. 27 was
timely under the Protective Order.2 Thus, all of Hotfile’s accusations as to the 32-page excerpt
of Titov Ex. 27 are irrelevant to the 297-page version of Titov Ex. 27.
Respectfully, since Hotfile chose not to oppose Warner’s current motion on the merits,
Warner’s motion should be granted.
Second, as Warner pointed out in its earlier motion on Titov Ex. 27, Hotfile bears the
burden of proof to demonstrate that its production of Titov Ex. 27 was deserving of protection as
an “inadvertently produced” document. See Warner’s 1/5/12 Reply, at 4-7; see also Amobi v.
D.C. Dep’t of Corr., 262 F.R.D. 45, 53 (D.D.C. 2009); Heriot v. Byrne, 257 F.R.D. 645, 658
(N.D. Ill. 2009). Hotfile was required, therefore, to come forward with actual evidence
explaining the circumstances of its production of Titov Ex. 27 and the steps that it took to
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While counsel stands ready to fully address Hotfile’s personal accusations for a second time if
and as the Court would like, for present purposes Warner refers the Court to Warner’s 1/5/12
Reply. In that brief, Warner fully addressed Hotfile’s charges, including demonstrating that the
Protective Order in this case does not, as Hotfile continues to argue, preclude Warner from
asserting that Hotfile’s production of Titov Ex. 27 was not legally “inadvertent” under applicable
caselaw. See id. at 2.

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As previously explained, the Protective Order does not require motions to be filed within five
days. See Warner’s 1/5/12 Reply, at 1-2. Moreover, Hotfile simply miscounts in arguing that
Warner’s motion was filed later than five days from the clawback. Hotfile produced two
differently Bates-numbered versions of the 297-page version of Titov Ex. 27. One was clawed
back on Saturday, December 3, 2011. Under the federal rules, that notice, which arrived on a
non-business day, is deemed delivered on Monday, December 5. The Protective Order provides
expressly that the five days for destroying documents (or filing them under seal with the Court)
are court days, not calendar days. Warner’s motion, filed on December 12, was in fact on the
fifth court day from the December 3 clawback email.
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prevent production of privileged documents. Yet, Hotfile still has not even attempted to meet its
burden; Hotfile did not even submit a declaration with its opposition to this motion. Thus,
Warner’s motion should be granted on that basis as well. See Warner’s 1/5/12 Reply, at 5-6
(citing consistent line of cases rejecting claims of “inadvertent” production when proponent of
privilege did not present evidence to meet its burden of proof).
Third, on the merits – which Hotfile does not address – Titov Ex. 27 presents a
compelling case for waiver. Hotfile produced Titov Ex. 27 not once but two separate times, in
June 2011 and again in October 2011. As one court put it, a 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., 2007 U.S. Dist.
LEXIS 27986, at *14 (S.D. Tex. Apr. 16, 2007); see also id. at *12 (“Evidence of multiple
disclosures on multiple occasions leads the Court to believe that Citgo did not take reasonable
precautions to prevent disclosure”).
And while Hotfile misleadingly asserts that it produced more than a million pages of
documents, Warner has already demonstrated in its earlier motion that the bulk of all document
production was long completed before Hotfile produced Titov Ex. 27 in October. See Warner’s
1/5/12 Reply, at 7-8. The October production was a discrete production related to the
counterclaims. It consisted of a total of 83 documents – not millions, or even hundreds.
Moreover, Hotfile has since clawed back 10 of the 83 documents from the October production.
It is simply not credible for Hotfile to claim that it “inadvertently” produced one out of every
eight documents produced in that October production – especially when Titov Ex. 27 is a 297page document. Hotfile has no answer for that, which likely explains why it has never even
attempted to offer an explanation.3
Instead of addressing the merits of Warner’s motion, Hotfile contends that no case
predating the 2008 amendment to Federal Rule of Evidence 502 remains good law – and that,
somehow, unless Hotfile had the subjective intent to produce Titov Ex. 27, the production is de

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It is also worth noting that Hotfile’s heated rhetoric about Titov Ex. 27 is not matched by its
deeds. Hotfile did not even seek a stay of the Court’s order on the 32-page version of Titov Ex.
27, and certainly did not rush to file its motion for review of that order (filing it on the last
possible day). Moreover, as the Court noted, Hotfile did not take steps to prevent the court
reporter from distributing the 32-page version of Titov Ex. 27. Hotfile can protest as angrily as it
wants. Actions speak louder than words.
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facto inadvertent. But that has never been the law, not before or after Rule 502. Indeed, in a
Rule 502 case that Hotfile itself relies upon (Opp. at 18-19), the court explained – in reasoning
fully applicable here – that the disclosing party’s “subjective intent is not controlling” because
“[a]ll inadvertent disclosures are by definition unintentional.” United States v. Sensient Colors,
2009 U.S. Dist. LEXIS 81951, at *14 (D.N.J. Sept. 9, 2009). “To determine if plaintiff’s
production was inadvertent the Court must look at a multitude of factors, including whether
plaintiff took reasonable precautions to prevent errors.” Id.
“Rule 502 does not define ‘inadvertent’.” MOORE’S FEDERAL PRACTICE § 26.70[6][f] (3d
ed. 2011). Given Rule 502’s silence on this and related issues, leading treatises have noted – in
direct contradiction to Hotfile’s claim – that “the pre-2008 case law remains pertinent to
application of this rule.” 8 Wright, Miller, and Marcus, FEDERAL PRACTICE AND PROCEDURE
§ 2016.3 (3d ed. 2010).
Under the clear weight of authority – and notwithstanding Hotfile’s citation to a few
outlier decisions – courts continue to rely on pre-Rule 502 caselaw to determine when a
disclosure is “inadvertent.” In Heriot v. Byrne, 257 F.R.D. 645 (N.D. Ill. 2009), for instance, the
district court expressly held that pre-Rule 502 caselaw applies to determine inadvertence. Before
Rule 502, inadvertence was determined by “factors such as the total number of documents
reviewed, the procedures used to review the documents before they were produced, and the
actions of producing party after discovering that the documents had been produced.” Id. at 65859. The Heriot court concluded that in the wake of Rule 502, it “c[ould] find no reason to
discard these factors, which aptly address the issue of whether a party inadvertently disclosed
confidential information.” Id. at 659. Similarly, “[p]ost-amendment [of Rule 502], district
courts in the Third Circuit have continued to consider [five] factors relevant to the issue of
inadvertent disclosure of privileged material.” Rhoades v. YWCA, 2009 U.S. Dist. LEXIS 95486,
at *6 (W.D. Pa. Oct. 14, 2009) (citing cases post-dating Rule 502’s enactment); see also
Silverstein v. Fed. Bureau of Prisons, 2009 U.S. Dist. LEXIS 121753, at *28-*29 (D. Colo. Dec.
14, 2009) (listing multiple factors for determining “inadvertence” under Rule 502(b)). And
Sensient Colors – which Hotfile itself cites (Opp. at 18-19) – further supports this view, as it too
relies on pre-Rule 502 caselaw to define inadvertence. See 2009 U.S. Dist. LEXIS 81951, at *14
(stating “inadvertent” disclosure is defined by “a multitude of factors”).

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In the same way, Hotfile’s claim that “the explicit terms of any clawback provision []
govern” (Opp. at 19) misses the mark. The Protective Order clearly and unequivocally provides
that a party may argue that a production was not inadvertent:
Nothing in this Order shall preclude a party from arguing that the
production of the allegedly inadvertently produced document was not
inadvertent or that conduct since production of the allegedly inadvertently
produced document constitutes a waiver.
Protective Order, May 19, 2011, Docket No. 68, at ¶ 20, p. 19. It does not, however, define
when a disclosure is “inadvertent” – and therefore “allow[ing] the explicit terms of any clawback
provision to govern” in this case (as Hotfile argues) does not address whether Hotfile has met its
burden of proving inadvertence. Hotfile’s reliance on Rally Manufacturing, Inc. v. FederalMogul Corp., 2011 WL 2938270 (S.D. Fla. July 21, 2011) is similarly inapt. Rally
Manufacturing does not raise, let alone discuss, the question at the crux of this dispute: whether
the disclosure at issue was inadvertent.
Thus, cases that pre-date the amendment of Rule 502 remain good authority and under
that authority Hotfile’s disclosure of Titov Ex. 27 cannot be deemed inadvertent.
Finally, Hotfile’s argument that Warner’s counsel should have recognized from the face
of Titov Ex. 27 that the document was work product, simply put, is frivolous. That Hotfile did
not even make this argument in connection with the prior motion on Titov Ex. 27 speaks
volumes.

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But to see the absurdity of Hotfile’s new argument the Court need look no further than
the fact that Hotfile’s lead counsel had Titov Ex. 27 in his hands and was reviewing it during the
entire time Hotfile’s corporate representative was being examined on it. Yet, apparently,
Hotfile’s lead counsel – who presumably is privy to Hotfile’s work product in ways Warner is
not – did not once object to the use of Titov Ex. 27 as work product. If Hotfile’s lead counsel
apparently did not recognize Titov Ex. 27 as work product, Hotfile can hardly accuse Warner’s
counsel of misconduct for not recognizing it.
CONCLUSION
For the foregoing reasons, and those stated in Warner’s opening memorandum and in
Warner’s 1/5/12 Reply (Docket No. 211), the Court should grant Warner’s motion to compel
access to the full 297-page version of Titov 27.
Dated: February 21, 2012

Respectfully submitted,
By: /s/ Karen L. Stetson

Miam
Telephone:
Facsim

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

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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 21st day of February, 2012, I served the following documents on
all counsel of record on the attached service list via electronic mail per the parties’ service
agreement:
Warner’s Reply Memorandum Of Law In Support Of Motion To Permit Use At
Trial Or Summary Judgment Of Titov Ex. 27 In Its Entirety
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

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]

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]

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

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