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

Filing 320

NOTICE by Hotfile Corp. re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION (Attachments: # 1 Exhibit A, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Errata, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit)(Munn, Janet)

EXHIBIT 10

Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROS.
ENTERTAINMENT INC.,
Plaintiffs,
CASE NO.
11-20427-WILLIAMS-TURNOFF

vs.

HOTFILE CORP., ANTON TITOV,
and DOES 1-10,
Defendants.
_________________________
AND RELATED CROSS-ACTION.
_______________________________________________________

CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
VIDEOTAPED DEPOSITION OF DAVID P. KAPLAN, ESQUIRE
PURSUANT TO FEDERAL RULE 30(b)(6)
Los Angeles, California
Tuesday, December 13, 2011
Volume 1
Reported by:
LORI SCINTA, RPR
CSR No. 4811
Job No. 177476B

Page 2
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF FLORIDA

3
4

7

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROS.
ENTERTAINMENT INC.,

8

Plaintiffs,

5
6

9
10

vs.

CASE NO.
11-20427-WILLIAMS-TURNOFF

HOTFILE CORP., ANTON TITOV,
and DOES 1-10,

11
12
13

Defendants.
_________________________
AND RELATED CROSS-ACTION.
_______________________________________________________

14
15
16

CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
Videotaped deposition of DAVID P. KAPLAN,

17

ESQUIRE, Volume 1, pursuant to Federal Rule 30(b)(6),

18

taken on behalf of Defendants and Counterclaimant,

19

at 633 West Fifth Street, Los Angeles, California,

20

beginning at 2:18 P.M. and ending at 4:58 P.M. on

21

Tuesday, December 13, 2011, before LORI SCINTA, RPR,

22

Certified Shorthand Reporter No. 4811.

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Page 3
1

APPEARANCES:

2
3

For Plaintiffs:

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5
6
7

JENNER & BLOCK LLP
BY: STEVEN B. FABRIZIO
Attorney at Law
1099 New York Avenue, NW, Suite 900
Washington, D.C. 20001-4412
202.639.6000
Email: [e-mail]

8
9
For Defendants and Counterclaimant:
10
11
12
13
14

FARELLA BRAUN + MARTEL LLP
BY: EVAN M. ENGSTROM
Attorney at Law
235 Montgomery Street
San Francisco, California 94104
415.954.4400
Email: [e-mail]

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16
Videographer:
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18
19
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VONYARN MASON
SARNOFF COURT REPORTERS
20 Corporate Park, Suite 350
Irvine, California 92606
877.955.3855

Page 89
1

THE WITNESS:

2

MR. FABRIZIO:

Yes.
We didn't just run searches and

3

hand the results over to you and say, "This is a list of

4

what we contend is infringing."

5

We spent hundreds of man-hours, maybe

6

thousands, but certainly hundreds of man-hours having

7

human beings look through the metadata and all

8

information with regard to those files.

9

With regard to some of them, "they" may have in

10

fact been content files to look at but, in the main, we

11

did not yet have the content files.

12
13

So we advised defendants that we would get the
content files from defendants and do further analysis.

14

MR. ENGSTROM:

What metadata was looked at?

15

MR. FABRIZIO:

I believe all the metadata that

16

Hotfile made available to us was looked at.

17

BY MR. ENGSTROM:

18

Q

Okay.

And we'll talk about files that are

19

produced -- files that are -- content files that have

20

already been produced.

21

But is that your understanding as to what was

22

done and that is the basis for Warner's allegation -- or

23

identification of files in Schedule A that it alleges

24

are infringing?

25

A

It is.

Page 106
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2
3
4

I, the undersigned, a Certified Shorthand
Reporter of the State of California, do hereby certify:
That the foregoing proceedings were taken

5

before me at the time and place herein set forth; that

6

any witnesses in the foregoing proceedings, prior to

7

testifying, were duly sworn; that a record of the

8

proceedings was made by me using machine shorthand

9

which was thereafter transcribed under my direction;

10

that the foregoing transcript is a true record of the

11

testimony given.

12

Further, that if the foregoing pertains to

13

the original transcript of a deposition in a Federal

14

Case, before completion of the proceedings, review of

15

the transcript [ x ] was [ ] was not requested.

16

I further certify I am neither financially

17

interested in the action nor a relative or employee

18

of any attorney or party to this action.

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20

IN WITNESS WHEREOF, I have this date
subscribed my name.

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22

Dated: 12-15-11

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________________________________
LORI SCINTA, RPR
CSR No. 4811

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,
vs.
HOTFILE CORP., ANTON TITOV,
and DOES 1-10,
Defendants.
__________________________
AND RELATED CROSS-ACTION.
________________________________________________________

HIGHLY CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
VIDEOTAPED DEPOSITION OF DAVID R. KAPLAN, ESQUIRE
PURSUANT TO FEDERAL RULE 30(b)(6)
Los Angeles, California
Wednesday, December 14, 2011
Volume 2
Reported by:
CHERYL R. KAMALSKI
CSR No. 7113
Job No. 179415

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

12/14/2011

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

2

CASE NO. 11-20427-WILLIAMS-TURNOFF
3
4

7

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM
CORPORATION, UNIVERSAL CITY
STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES,
INC., and WARNER BROS.
ENTERTAINMENT INC.,

8

Plaintiffs,

5
6

9
10

vs.
HOTFILE CORP., ANTON TITOV,
and DOES 1-10,

11

13

Defendants.
____________________________________
AND RELATED CROSS-ACTION.
______________________________________________________

14

HIGHLY CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER

12

15
16

Videotaped Deposition of DAVID R. KAPLAN,

17

ESQUIRE, Volume 2, pursuant to Federal Rule 30(b)(6),

18

taken on behalf of Defendants and Counterclaimant,

19

at 633 West Fifth Street, 37th Floor, Los Angeles,

20

California, beginning at 9:16 a.m. and ending at

21

12:33 p.m. on Wednesday, December 14, 2011, before

22

CHERYL R. KAMALSKI, Certified Shorthand Reporter

23

No. 7113.

24
25

107

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

12/14/2011

APPEARANCES:

2
3
4
5
6

For Plaintiffs:
JENNER & BLOCK LLP
BY: DUANE POZZA
Attorney at Law
1099 New York Avenue, NW, Suite 900
Washington, D.C. 20001-4412
202.639.6000

7

For Defendants and Counterclaimant:
8
9
10
11
12
13

FARELLA BRAUN + MARTEL LLP
BY: EVAN M. ENGSTROM
Attorney at Law
235 Montgomery Street
San Francisco, California 94104
415.954.4400
Videographer:
VONYARN MASON
SARNOFF, a Veritext Company

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15
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25

108

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

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THE WITNESS:

Again, for theatrical features

2

alone there's probably like 8,000 titles.

3

is some of them were and some of them were not.

4
11:09

12/14/2011

BY MR. ENGSTROM:

5

Q

Okay.

So the answer

Were titles, movies, that Warner was

6

searching for infringing copies of on the Internet, were

7

all of those movies fingerprinted?

8
9
11:10

MR. POZZA:

outside the scope of the notice.

10
11
12

THE WITNESS:

11:10

Q

17

How about now, today?
MR. POZZA:

Objection; the question's

ambiguous, it's also outside the scope of the notice.

15
16

I don't think all were.

BY MR. ENGSTROM:

13
14

Objection; ambiguous and also

THE WITNESS:

No, I don't think all are.

BY MR. ENGSTROM:
Q

Okay.

We can put this document away for now.

18
19
11:10

Well, I don't think I'll be coming back to it, so we can
just put it away.

20

Okay.

21

these quickly.

22

You'll forgive me.

Why don't I give you a copy so you can look at

23

it while I'm doing this.

24
11:11

I have to staple

Exhibit 31.

25

I'd like to mark this as

(WB Exhibit 31 marked.)

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DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

MR. POZZA:

12/14/2011

Counsel, do you know if this has

2

previously been marked as an exhibit in the previous

3

Warner Bros. deposition?

4
5

THE WITNESS:

6

11:12

MR. ENGSTROM:

MR. ENGSTROM:

Off the top of my head, I don't.
It was, but -There may have been other

7
8

particular one was, because there were several e-mails

9
11:12

iterations of the document.

on that string of e-mails, I believe.

10

MR. POZZA:

Okay.

I'm not sure if this

Well, I will object to any

11
12

duplicative of questioning that has already been asked

13

of the witness in the previous deposition, or the same

14
11:12

questioning on this document to the extent that it is

topic, for that matter.

15

BY MR. ENGSTROM:

16
17

Q

So if you believe this was already marked as an

exhibit, do you recognize this document?

18

I do.

19
11:12

A
Q

Okay.

20
21

Do you recall what -- do you recall

the -- strike that.
What business proposal -- and I'm quoting

22
23

line of the top level e-mail, "Business Idea for Hotfile

24
11:13

here -- I should say Business Idea, which is the subject

and Warner Bros.," do you -- can you explain what the

25

business idea is?

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DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

MR. POZZA:

12/14/2011

I'm going to object that this --

2
3

repetitive.

4
11:13

this was already covered at the last deposition, it's

the testimony there.

5

And we have objected to reopening any of

MR. ENGSTROM:

If you'd like to stipulate that

6

the foundation for this document has been laid, I'm more

7

than happy to ask different questions on it.

8
9
11:13

MR. POZZA:

Not a speaking objection, but to

understand where this is going, are you just -- are you

10

asking about other things, but using this as a

11

foundation?

12

MR. ENGSTROM:

I'm -- I'm asking questions

13
14

deposition that relate to the topic noticed here,

15

communications with Hotfile that relate to the studios'

16

11:13

about this document that weren't asked in the previous

main claim, not the counterclaim.

17

MR. POZZA:

Okay.

Well, you can ask questions.

18
19
11:13

But, you know, he testified as to what the, quote,
business idea was at length.

20

MR. ENGSTROM:

And if we want to -- if you

21

can -- if you stipulate that the previous testimony

22

remains the same --

23

MR. POZZA:

Well, we're not -- I'm not

24
11:14

withdrawing his previous testimony.

25

question him again.

We don't need to

188

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

12/14/2011

1
2

MR. POZZA:

3

questions you already asked.

4

him different questions about the affirmative claims,

5

that's fine.

6

11:14

MR. ENGSTROM:

BY MR. ENGSTROM:

7
8

Q

Fair enough.

It's just not the time to ask him

Let me ask this.

I mean, if you want to ask

Why did Warner Bros. propose

this to Hotfile?

9
11:14

Okay.

A

10

deposition.

I think we covered that, too, in the previous
So --

11

MR. POZZA:

12

THE WITNESS:

Yeah.

I'm --

-- I would be inclined to just --

13
14
11:14

just to say what I said before was the reason.
BY MR. ENGSTROM:

15

Q

Which was what?

16

A

I may not say it this time with the exact same

17

words.

18

Q

19
11:14

20

That's my only -Okay.

Sure.

MR. POZZA:

Yeah.

No.

I'm going to -- I'm

going to object to this as asked and answered.

21

MR. ENGSTROM:

22

MR. POZZA:

Fine.

There was extensive questioning and

23
24
11:14

explanation of -- of this -- this e-mail chain.
think it's necessary to get back into it again.

25

MR. ENGSTROM:

I don't

Are you instructing him not to

189

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

answer?

2
3

MR. POZZA:

I'm going to object to it as asked

and answered.

4
11:14

MR. ENGSTROM:

5

MR. POZZA:

Okay.

And he can state that he's already

6

answered it and he sticks by his previous answer.

7

BY MR. ENGSTROM:

8

Q

You can answer.

9
11:14

12/14/2011

A

Yeah, I -- we testified about that -- I

10

testified to that in the previous deposition.

11

I stick by whatever I said in the previous deposition.

12
13

Q

Did -- did Warner Bros. offer the same business

idea or similar business idea to other hosting sites?

14
11:15

And I --

MR. POZZA:

Object to this in that it's

15

ambiguous and outside the scope of the deposition

16

notice.

17

THE WITNESS:

This idea never really got off

18
19
20

were interested in talking to you more about this so -I can't say we offered this to somebody else because

22

there was never anything offered here, is what I'm

23

trying to say.

24
11:15

exactly what it would have been had Hotfile said yes, we

21

11:15

the ground at all.

BY MR. ENGSTROM:

25

Q

Proposed.

So I don't know exactly what --

The proposal.

Was this proposed to

190

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1

other hosting sites?

2
3

MR. POZZA:

I have the same objections as to

ambiguity and outside the scope of the notice.

4
11:16

12/14/2011

THE WITNESS:

So I'm referring to now --

because this is the only basis for what the proposal

6

would have been, is the e-mail that Ethan sent in

7

February of 2010, which is, I guess, the first e-mail in

8

this chain, that talks about including links on Hotfile

9
11:16

5

to e-commerce sites where Warner Bros. content is

10

hosted.

11

click downloading sites with that proposal.

12

BY MR. ENGSTROM:

13
14
11:17

15

Q

And I don't believe we contacted other one-

Why was Hotfile the only one-click downloading

site that Warner Bros. contacted with that proposal?
MR. POZZA:

I'm going to object to the extent

16

that this covers testimony that he's already had about

17

this proposal, as you've characterized it.

18

THE WITNESS:

Yeah, I did testify as to why we

19

site that had a lot of traffic on it, and it looked like
maybe they would be amenable to some anti- -- you know,

22

taking steps to minimize the piracy on the site, and

23

that if there was a commercial incentive for them to do

24
11:17

20
21

11:17

contacted Hotfile at the time, which was that it was a

that, maybe they'd be more inclined to, you know,

25

eliminate the piracy of Warner Bros. content.

191

DAVID R. KAPLAN, ESQUIRE, V. 2
HIGHLY CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

1
2

12/14/2011

I, the undersigned, a Certified Shorthand
Reporter of the State of California, do hereby certify:

3

That the foregoing proceedings were taken

4

before me at the time and place herein set forth; that

5

any witnesses in the foregoing proceedings, prior to

6

testifying, were duly sworn; that a record of the

7

proceedings was made by me using machine shorthand

8

which was thereafter transcribed under my direction;

9

that the foregoing transcript is a true record of the

10

testimony given.

11

Further, that if the foregoing pertains to

12

the original transcript of a deposition in a Federal

13

Case, before completion of the proceedings, review of

14

the transcript [ ] was [x] was not requested

15

I further certify I am neither financially

16

interested in the action nor a relative or employee

17

of any attorney or any party to this action.

18
19

IN WITNESS WHEREOF, I have this date subscribed
my name.

20
21

Dated: 12/27/2011

22
23
24

_________________________________
CHERYL R. KAMALSKI
CSR No. 7113

25

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