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

Filing 370

NOTICE by Hotfile Corp., Anton Titov of Filing the PUBLICLY FILED REDACTED Version of Defendants' Objections to the Magistrate Judge's Report and Recommendation Regarding Plaintiff Warner's Motion to "Use" Titov Exhibit 27 in its Entirety at Trial or on Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Munn, Janet)

EXHIBITG

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Case 1:11-cv-20427-KMW Document 206-1 Entered on FLSD Docket 12/27/2011 Page 2 of 7

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 TIrOV, and
DOES 1·10.

Defendants.

-------------------------------I.
HOTFILE CORP.,
Counterclaimant,

v.
WARNER BROS. ENTERTAINMENT INC.,
Counter·Defendant.

/..

------------~--------------~

DECLARATION OF RODERICK M. THOMPSON IN SUPPORT OF
COUNTERCLAlMANTHOTFILE CORP.'S OPPOSITION TO WARNER'S MOTION
TO COMPEL THE PRODUCTION OF TITOV DEPOSITION EX. 27

I, Roderick Thompson, declare as follows:
1.

I am a partner witn tne law firm Farella Braun + Martel LLP, c01lllsel.for

Defendant and Counterclaimant Hotfilc Corporation ("Hotfile") and Defendant Anton Titov. I

26501\2904534.1

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Case 1:11-cv-20427-KMW Document 206-1 Entered on FLSD Docket 12/27/2011 Page 3 of 7

CASE NO. 11-20427-WILLIAMS/TURNOFF
have personal, knowledge of the matters stated herein and, if called alld sworn as a witness, I
could and would competently testify to the facts set forth herein.
2.

During the discovery process in the present lawsuit, Hotfile Corp. ("Hotfile") has

produced (lpproximately 1,141AOI documents. In comparison, all the Plaintiffs combined have
produced approximately 26,517 documents, and one of the plaintiffs, counter-defendant Warner
Bros. Entertainment ("Warner") has produced 10,374 ofthose documents.
3.

As a part of its document production, Hotfile produced emaHs from the following

email boxes:[e-mail]@[e-mail].
, [e-mail], and [e-mail]. The documents beginningwith the Bates
numbered HF02866338 and HF00036777 were accidentally produced from the
[e-mail]@gmail.com mailboxes, respectively. Hotfile withheld
as protected by the work product doctrine other copies of the same document, including copies
contained in the [e-mail], [e-mail], and nolknows,[e-mail] email boxes.
4.

Attached hereto as Exhibit 1 is a true and correct copy of an email dated

Novemb,er 28, 2011, sent from Anthony Schoenberg (J;ny partner at Farella Braun + Martel LLP,
and an attorney of record for Hotfile) to Duane Pozza (an attorney of record for Warner),
, demanding the destruction or return pursuant to the Protective'Order entered in this case [D.E. #
68] of, among other'documents, HF02866338--the document at issue in this motion. The other
version qfthis document inadvertently produced (beginning with HF00036777) was recalled by
a separate email notice on December 3, 2011.
5.

I attended the deposition of Mr, Anton Titov taken by the Plaintiffs in Sofia

Bulgaria, on December 5-8, 2011. I represented both Mr. Tilov and Hotfile at the deposition.
Mr. Fabrizio represented the Plaintiffs, including counter-defendant Warner.

2
'2650]12904534,]

Gase 1:11-cv-20427-KMW Document 206-1 Entered on FLSD Docket 1212712011 Page 4 of 7

CASE NO. 11-20427-WILLIAMS/TURNOFF
6.

After 5 p.m. dffi'ing the first day of deposition, Mr. Fabrizio began examining Mr.

Titov about Hotfile's post-'complaint investigation of the wrongful takedowns by Warner's SRA.
After Mr. Fabrizio had marked the first exhibit related to this subject matter,] made the
following statement:
Mr. Fabrizio, let me also just state while. he's re.ading that, we have become aware in the
last week or two or some inadvertent produced documents that were written in Bulgarian
that contained work product information. And I'd ask -- have aSked for their retffi'n. I
don't know if this is among them or not, not being able to read the Bulgarian.
(164:7-13.) In fact, as Mr. Fabrizio admitted the next day, the document-marked as Exhibit
26-was among those recalled by Hotfile pffi'suant to the protective order. Nonetheless, Mr.
Fabrizio responded "Well, then, we can deal with that afterwards," and proceeded improperly to
examine the witness On a document thai had already been recalled and should have been returned
to HotfiJe under the clear mandate of Paragraph 20 of the Protective Order.
7.

In preparing to defend Mr. Titov's deposition in Bulgaria, I and Hotfile relied on

the protections provided by the Protective Order regarding inadvertent production and potential
recall of work product documents contalned in the millions of pages produced by Hotfile. In
particular, we relied on Plaintiffs-the party reviewing and selecting the potential exhibits to he
used-to be sure that they complied with Paragraph 20 and had returned all documents clawed
back by Hotfile and did not use any such documents at the deposition.
8.

Given that it was in the ruJdst of a deposition and the 10 hoUl' time zOlle difference

with my office in California, it would not have been practical for me to check to be sure that
Plaintiffs were not about to violate the Court's order each time they marked an exhibit.
Therefore, despite my concern expressed on the record, I allowed Mr. Fabrizio to contim;te the
line of inquiry, but reserved "a potential objection to the extent this has any work product."
(164:13-17).

3
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C:;ase 1:11-cv-20427-KMW Document 206-1 Entered on FLSD Docket 1212712011 Page 5 of 7

CASE NO. 11-20427-WILLIAMS/TURNOFF
9.

When Mr. Fabrizio asked about Hotfile's investigation ofWarnel"s wrongful

conduct in "March, April and even May" 0[2011, I immediately objected "to the extent that it
. calls for work product information which commenced after the date of early March 2011" when
Hotfile first started its work product protected investigation at the direction of my firm. (167:4-

.9). A few questions later, Mr. Fabrizio marked as Exhibit 27, the document in dispute,
HF02866338. I did not object at the time because I wa'l unaware that the document had already
been recalled by Mr. Schoenberg on November 28, a week before. Instead I relied on Plaintiffs
and Mr. Fabrizio to comply with their obligations under Paragraph 20 of the Protective Order. I
assumed that Mr. Fabrizio would never have attempted to examine Mr. Titov about Exhibit No.
27 if the document was among the documents Plaintiffs were required to return pursuant to an
order of the Court. I certainly had no intent to waive the work-product protection.
10.

After the deposition adjourned· for the day, during the evening of December 5,

2011, I attempted to determine the specific date in Early March 201 [ when my firm had
instmcted Hotfite to undertake a work product protected and to identify by HF production
numbers the documents that had been. the subject of recall requests to plaintiffs. I determined
that Hotfile began the protected investigation on March 2, 2011 and obtained a list of some but
not all of the HF production numbers that had been recalled (or "clawed back') by Hotfile. (D.ue
to the distance and time zone differences, I was not able to obtain a definitive Jist of recalled
documents and did not learn that Exh. 27 had in fact already been recalled.) Even though I
lacked complete information !tbout the documents that had already been clawed back, to ensure
that there could be no question that Hotfile was not waiving any of its work product protections,
that same evening (about 11:30 p.m. local time) I sent Mr. Fabrizio an email stating in part:
Steve, as I advised you today during the deposition, in early March, at the request of its
attorneys, Hotfile began its protected work product investigation in to Warner's wrongful

4
2650112904534.1

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Case 1:11-cv-20427¥MW Document 206-1 Entered on FLSD Docket 12/27/2011 Page 6 of 7

,
:'

CASE NO, 11-20427-WILLIAMS/TURNOFF
takedowns via the SRA tool. The date the work product investigation began was March
2nd, 20 II, • *, • * We therefore we ask that you refrain from marking as exhibits at any
ofthe depositions this week (or otherwise make use of) documents created by Hotfile on
or after that date that are appear to potentially be work product
A true and correct. copy of that email is attached as Exhibit 2.
11.

The following momlng before the deposition began, 1 confirmed that Mr. Fabrizio'

had received my email and understood Hotfile's position that it was not waiving its work-product
protection and would insist on Plaintiffs compliance with the Protective Order and the Federal
Rules regarding inadvertently produced work product protect and wO\lld not waive any
applicable privileges. 1 speCifically pointed out to Mr. Fabrizio that he had improperly examined
the witness on Exhibit 26, a document that had been recalled as work product. I also requested
the retum of Exhibit 27 and that he work with me to retrieve this exhibits from the court reporter
and to see that the improperly elicited testimony would be stricken from the record. (At this
time, I was not' aware that Ex, 27 had already been recalled by Exhibit 1 attached hereto, and that
Mr. Fabrizio's use of that Exhibit also violated the Court's order.)
12.

Attached hereto as Exhibit 3 are excerpts from the Titov depositions taken on

December 5 and 6,2011 described above. Because at the time I was unaware that Mr.
Schoenberg had previously reques'ted the return or destruction of that document on November
28,2011, on December 6, I again requested on the deposition record the return or destruction of
all copies ofHF02866338. Mr. Fabrizio declined to return the exhibit, but committed
unequivocally that Plaintiffs would comply with paragraph 20 of the Protective Order: "the
protective order in this case spells out the procedures for requesting back a document that you
believe was inadvertently produced. And {believe the protective order is what governs this
request, and we are honoring the protective order, and that gives us some number of business
days to address it. (200:12-18).

5
2650112904$34.1

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Gase 1:11-cv-20427-KMW Document 206-1 Entered on FLSD Docket 12/27/2011 Page 7 of 7

CASE NO. 11-20427-WILLIAMS/TURNOFF
13.

On December 23, 201 1, I informed counsel for Warner that Hotfile had requested

the l'ettu'n or destruction of the document beginning with HF02866338 on November 28, 2011,
provided them with another copy of Mr. Schoenberg's email (attached as Exhibit I hereto) and
asked Warner to withdraw this motion to con:ipel as barred by as untimely by the Protective
Order. (Paragraph 20 provides that "A party may move the Court for an Cirder compelling
production of [an inadvertently produced] document, and may present the document to tlle Court.
tinder seal within five (5) court days of receiving a request to return the document.") This
motion was filed some two weeks after.Mr. Schoenberg'S request. A true and correct copy of'
my December 23 email is attached as Exhibit 4. Despite my request in the email for a response
the same day in order to avoid the need work over the Christmas holiday weekend to file an
oppOSiti01A to the motion, I have received no response. PJainti'ffs still have not withdrawn this
lllltimely motion.
I.declare under penalty ofpeJjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on this 27th day of December 2011, at San Francisco, California.

6
2650112904534.1

:'.1

Case 1:11-cv-20427-KMW Document 206-2 Entered on FLSD Docket 12/27/2011 Page 1 of 3

EXHIBIT 1

Case 1:11-cv-20427-KMW Document 206-2 Entered on FLSD Docket 12/27/2011 Page 2 of 3

I

I

From: Schoenberg, Tony (28) x4963
,Sent: Monday, November 28, 2011 2:21 PM
To: IPozza, Duane' .
Subject: document c!awbacl<
DuaneWe hereby request the destruction of 27 documents pursuant to paragraph 20 of the protective order, These
documents, HF02:t59263, HF02835468, HF02835472, HF02860466, HF02860550, HF02860552, HF02861582,
HF02861720, HF02861721,HF02861723,HF02863352,HF02863353,HF02863354, HF02863445,HF02863466,
HF02863467,HF02865736,HF02865737,HF02865738,HF02866338, HF02866339, HF02866670,HF02866671;
HF02866672, HF02867217, HF02867218, and HF02867647, were inact'vertently produced, Each of the documents is
protected by the attorney-client privilege and/or constitute protected work' product. Please confirm that you have
destroyed all copies of these documents,
Regards;
Tony

Anthony p, Schoenberg
Attomeyat Law
1

Case 1:11-cv-20427-KMW Document 206-2 Entered on FLSD Docket 12/27/2011 page 3 of 3
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Farella 'BnlUn + Martel LLP

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RUSS BUILDING
235 MONTOOMERY STREET
SAN FRANCISCO I CA 94104

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Case 1:11-cv-20427-KMW Document 206-3 Entered on FLSD Docket 12/27/2011 Page 1 of 3

EXHIBIT 2

Case 1:11-cv-20427-KMW Document 206-3 Entered on FLSD Docket 12/27/2011 Page 2 of 3

From:

Sent:
To:

Thqmpson, Rod (27) x4445.
Monday, December 05, 2011 1:21 PM

Cc:

'Fabr1zlo, Steven 8'; '[e-mail]'; 'Platzer, Luke C'
Schoenberg, Tony (28) x4963; Lelbnltz, Andrew (21) x4932; Engstrom, Evan (27) x4945;

Subject:

'gurvlts@bostonlawgroup,com'; 'Janet Munn'
RE: document clawback

Steve, as I advised you today during the depositiqn, in early Man;h, at the request of its
attorneys, Hotfile began its protected work product investigation in to Warner's wrongful
takedowns via the SRAtool. The date the work prodUct investigation began was March 2nd ,
2011, As you are aware many of the documents were written in Bulgarian and as a result.our
privilege review is taking a long time.
'
We therefore we ask that you refrain from marking as exhibits at any of the depositions this
week (or otherwise make use of) documents created by Hotflle on or after that date that are
appear to potentially be work product. If there is a question on the Issue, please show me·the
do"ument before using, In particular, do not use' any bfthe documents listed below in Tony's
email and return all copies to us, I'm copying luke and Duane to be sure there is no
misunderstanding.
So far you've marked two documents that are work product of Hotfile: (HF2303232) Exh, 26,
that was expressly clawed back in Tony's email to Duane below, and HF 02866338-369 Exh, 27,
which we hereby ask that you return to us and destroy all copies pursuant to paragraph 20. As
I stated on the record'today, we also object to all questions and responses based on this two
documents and ask your assistance in getting them stricken from the record before a final
transcript is prepared, Thank you for your cooperation,
Rod
From: TSchoeobero@fbm,com fmailto:[e-mail]
Sent: Saturday, December 03, 2011 9:55 AM
To: DPQzza@lenner,com
Subject: document Clawback

DuaneWe hereby request the destruction of the following documerts pursuant to paragraph 20 of the
protective order: HFB2835266, HFfl2863431, HF02865156, HF02835194, HF02863433, HF62863224,
HF02863225,
HF02763713,
HF621S88S4,
HF0230Sess,
HF02863226,

HF02831644, HFfl283151l, HF02831S12, HF62831538, HFG2831598, HF02763712,
HF02703739, HF02703799, HF62703800, HF02763826, HF02763886, HF02831644,
HF021588SS, HFG2303232, HF02303233, HF02304874, HF62304875, HF0236S0S4,
HF027037l2, HFG003S990) HF6003S991, HF061?3 677.7, HF06036778, HF0215874S,
HF02863227 and HF02863228: These were inadvertently pi-oduced: Each of the

documents is protected by the attorney-client privilege and/or constitute protected work
product, Please confirm that you have destroyed all copies of these docum·ents.
1

Case 1:11-cv-20427-KMW Document 206-3 Entered on FlSD Docket 12/27/2011 Page 3 of 3

Regards,
Tony

Anthony P. Schoenberg
Attol1ley at Law

Jiarella Emull + M,nrtel LI.!'
RUSS BUILDING

235 MONTGOMERY STREET
SAN FRANCISCO I CA 94104

l' 415.954.4400
D 415.954.4963
F 415.954.4480
YL\\'YlJ;Qm.com '

This e~mall message Is (or the sole use of the Intended redpient(s) and may contaIn confidential and privileged Information. Any
unauthorized review/ use/ disclosure or distr:lbutlon Is prohibited. If you are not the Intended reclplent please contact the sender by
reply e-mail and destroy all copies of the origInal message! Thank you.
j

Farella Braun

2

+ Martel

LLP

CFlse 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 1 of 10

EXHIBIT 3

Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/2712011 Page 2 of 10

Highly Confidential

Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11~20427-WILLIAMS/TURNOFF
DISNEY ENTERPRISES,
INC., TWENTIETH CENTURY
FOX FILM CORPORATION,
UNIVERSAL CI'l'Y STUDIOS
PRODUCTIONS LLLP,
CQLOMBIA PICTURES
INDUSTRIES, INC.,. and
,WARNER BROS.
ENTERTAINMENT, INC.,
Plaintiff,

v.
'HOTFILE CORP., ANTON
TITOV, and DOES 1-10,
Defendants.

II
HOT FILE CORP.,
Counterclaimant,

v.
WARNER BROS ENTERTAINMENT
INC. ,
Counterdefendant.
VOLUME I
'H I G H L Y' CON F IDE NT I A L
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30(b) (6) DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia', Bulgaria
Monday, December 5, 2011
Job Number: 44174

.-""
TSG Reporting· Worldwide

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800-702-9580

Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 1212712011 Page 3 of 10

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800-702-9580

Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 4 of 10

Highly Confidential
Page 167
1

A.

No, they did.riot.

2

Q.

Hottile had identified what it believed to have been

3

mistakes in the notices by Warner throughout

4

February, March,. April and even May of 2001; is that not.

5

correct?

6

MR. THOMPSON:

I'm going to object to the extent that it

7

calls for work product information which commenced after

8

the date of early March 2011.

9

To the extent you can answer without revealing work

10

product information, you can do so.

11

A.

I don't think I can·answer.

12

BY MR. FABRIZIO:

13

Q.

Okay.

Well, you identified what you believed to have

14

been mistakes made by Warner prior to early March 2001;

15

is that not correct?

16

A.

17

Q.

Okay.

!
,

Yeah, I believe so.

18

Did you ever bring those mistakes to the

attention of Warner prior to filing your counterclaim? .

19

A.

Not directly, no.

20

Q.

Indirect·ly?

21

A.

It is my belief that at some point our counsel

22,

communicated ·with Warner, who ·knew.

TSG Reporting - Worldwide

800-702-9580

Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 5 0110
l:

Highly Confidential
Page 191
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS!TURNOFF,
DISNEY EN'rERPRISES,
INC., TWENTIETH CENTURY
FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS
PRODUCTIONS LLLP,
COLUMBIA PICTURES
INDUSTRIES, INC., and
WARNER BROS.
ENTERTAINMENT, INC.,
Plaintiff,

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

,

Defendants.

)
,

HOTFILE ,CORP.,
Counterclairnant,

v.
WARNER BROS ENTERTAINMENT
INC., ,
Counterdefendant.
VOLUME II
H I G H L Y CON F I '0 E N T I A L
(Pursuant to protective order, the following
transcript has been designated highly confidential)
30 (b)

DEPOSITION OF ANTON TITOV
Radisson Blu Hotel
Sofia, Bulgaria'
Tuesday, December 6, 2011
AT: 9:10 a.m.
Job No: 44175
(6)

TSG Reporting - Worldwide

[phone]

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,

Gase 1:11-cv-20427-KMW, Document 206-4 Entered on FLSD Docket 12/27/2011 Page 6 of 10

Highly Confidential
Page 196
1

VIDEOGRAPHER:

This is the beginning of tape 1, volume II,

2

and a continuation in the deposition of Mr. Anton Titov.

3

On the record, 9:10.

4

MR. THOMPSON:

Mr. Fabrizio, as we've been discussing off

5

the record, the defendants have informed you and now

6

i.nform the court reporter that exhi.bits 26 and 27 were

7

inadvertently produced documents that contain work

8

product information, and we ask for their return.

9
10

I would also ask you to work with me after the
deposition to strike the testimony that was given

11

pursuant -- about those documents yesterday.

12

do that now; I won't take your time.

13

We'll not

The reason for pulling them back is that beginning

14

on March 2nd, 2011, Hotfile undertook work product

15

investigation of its potential counterclaim against

16

Warner Brothers.

17

after that date.

18

These documents were both generated

We provided you a list on Saturday; I recognize you

19

were in transit and may not hav.e seen it.

Exhibit 26

20

was among the documents that were on that list.

21

Exhibit 27 was not, but on furthe'r investigation, it's

22

dated March 10 and is also protected work product.

23

I'd like to work with you going forward today to the

24

extent you have documents that you want to use with this

25

witness that are dated or generated after March 2nd .

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TSG Reporting - Worldwide

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Cilse 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 7 of 10

Highly Confidential
Pag'e 197
1

But please give me a chance to examine them to make sure

2

that they're not also work product before we examine the

3

witness.

4

With that, and not to belabor the record, I'd like

5

to formally request the return of exhibits 26 and 27 and

6

1

have them removed from the record.

7

MR. FABRIZIO:

Right.

I won't belabor our disagreement on

8

this on the record.

We'll have plenty of time to

9

discuss it when we're back in the States. 'But as you

10

out, exhibit 27 wasn't on any -- any list, .and that list

11

did come Saturday before a Monday deposition, and I have

12

told you I wouldn't have had a chance to look at it, and

13

didn't and still haven't.

14

So, going forward, I am happy to give you, you know,

15

time .to look at the document 'before we begin questioning

1.6

the wi tne.ss; but as for the documents that have already

17

been marked, the only thing I ·can tell you is that we

18

will -- without waiving -- either. party waiving any

19

rights or privileges, we'll see what the situation is

20

a'nd address them when we get baCk home.

21

I can tell you right now, by way of fair warning,

22

that -- well, exhibit 26 was a document in Bulgarian,

23

and if you can demonstrate. that a waiver was or the

24

disclosure was inadvertent, I don't think .we'll have

25

issue with it.
~.

TSG Reporting

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Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 8 of 10
,I

Highly Confidential
Page 198
1

On the other hand, exhibit 27 appears plainly from

2

the testimony yesterday not to be work product, and it

3

is not a document that was produced in Bulgarianr it was

4

produced in English.

5

not easily have been missed, and we don't think that the

6

production of it was inadvertent.

7

witness, with counsel present, testified fairly

8

extensively about the document yesterday, so we believe

9

that the document was never privileged to the extent it

It was a long document,

80

could

And moreover, the

10

might have been waived on production.

11

it wasn', t waived on production, it was certainly waived

12

at this point.

13

And to the extent

But we recognize that you have every right to make

14

a challenge to that, and we will just deal with that in

15

the normal course when we're back in the United States.

16

MR. THOMPSON:

Mr. Fabrizio, very. briefly, as I told you off

17

the record, you should update your.elf of the law.

18

a document is requested to be pulled back, there is no

19

burden; you have no choice but to give it back to us.

20

There's no longer any need to show that we waived any

21

privilege by inadvertent production.

22

something inadvertently; you are required to provide the

23

documents back to us.

24
25

When

We produced

You can challenge it later court,

With respect to exhibit 26, as you've noted, that's
in the Bulgarian language, and we don't speak Bulgarian;
TSG Reporting - Worldwide

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Highly Confidential
Page 199
1

2

we can't read every document before it was produced.
With respect to exhibit 27, the record will speak
I made very clear to you yesterday that

3

for itself.

4

I was concerned about a work product pri vil~ge wi,th

5

respect to any document dated after late M'arch, and

6

I would check overnight to get a particular date, and

7

I indulged with you a courtesy, and I expected to have

8

the 'courtesy returned, of you proceeding with the

9

examination, subject to my objection.

10

Now, what I would ask again today is before you mark

11

any document dated after March 2nd, 2011', pertaining to

12

the Warner Brothers counterclaim, that you give me

13

a chance to check to see if we have in fact asserted

14

that the document is privileged -- which is something,

15

frankly, you and your team should have done.

16

issued many other emails with document numbers to be

17

taken back, just as your team has.

18

Saturday.

19

make the same mistake today of allowingexamination on a

20

document that should never have been used.

21

MR. FABRIZIO:

I

We've

It wasn.'t only on

JUSt want us both to make sure we don't

Well, we

I

will, do whatever I can to

22

reasonably give you an opportunity to look at documents

23

today, as I think I did yesterday, and the record will

24

speak for itself.

25

objection raised, no concern raised.

But as to exhibit 27, there was no

<;N~

TSG Reporting - Worldwide

I

As to exhibit 26,

,.

[phone]

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I

Case 1:11-cv-20427-KMW Document 206-4 Entered on FLSD Docket 12/27/2011 Page 10 of
10

Highly Confidential
Page 200
1

there certainly was, because it was in Bulgarian, and

2

neither one of us knew what the full document said, and

3

you specifically asked me whether I would consider your

4

allowing the witness to be examined On it, a waiver, and

5

I specifically said that I would not consider the fact

6

that Mr. Titov answered questions about that document at

7

his deposition to be a waiver; that we did not have

8

anywhere near -- anything, any agreement as to

9

exhibi t 27, and hopefully 'the record will reflect any

10
11

objections raised as to exhibit 27.
But going forward, we can deal with it.

And as for

12

the rules and what I need to educate'myself on, the

13

prot'ecti ve order in ,this case spells out the procedures

14

for requesting back a document that you believe was

15

inadvertently produced.

16

order is what governs this request, and we are honoring

17

the protective order, and that gives us some number of

18

business days to addiess it, which, fortunately, lets us

,19

conclude this deposition and get back to the United

20

States to address it.

21

the protective order or' the rules apply once a document

22

has been marked at a deposition and the witness has --

23

has testified extensively on it.

24

have to look at.

25

MR. THOMPSON:

And I believe the protective

And frankly, I am not sure how

That's something we'll

I can tell you right now.

How i t works is

...
TSG Reporting - Worldwide

[phone]

Case 1:11-cv-20427-KMW Document 206-5 Entered on FLSD Docket 1212712011 Page 1 of 3

EXHIBIT 4

Case 1:11-cv-20427-KMW Document 206-5 Entered on FLSD Docket 12/27/2011 Page 2 of 3

From: Thompson, Rod (27) x4445
Sent: Friday, December 23,.2011 12:59 PM
To: Pozza, Duane; Platzer, Luke C
ec: Fabrizio, Steven B; Engstrom, Evan (27) x4945; Schoenberg, Tony (28) x4963; Lelbnltz, Andrew (:11) x4932;
iInl!D.lJ@f1l§l:.9JslQ~JJl

Subject: FW: document clawback motion
Importance: High
Duane'and Luke, In responding to the motion flied regarding Exh. 27 we have determined that the document at Issue
(HF02866338) was In fact recalled as Inadvertently produced on November 28 in the forwarded email below from Tony
to Duane.
Paragraph 20 of the protective order says that "A party may move the Court for an order compelling production of (an
inadvertently produced] document, and may present the document to the Court under seal within five (5) court days of
receiVing a request to return the document," This rnotion was filed more than five court days after we requested the
claw back.
We assume that vou overlooked Tony's notice of the inadvertent prodUction (as I had) and that Is why you flied the
motion late and did not apprise the court. Please confirm that In. light of this new information, you wlll withdraw the
motion so that we need not file an opposition. Obviously, If the motion Is not'wlthdrawn, we will point out the violation
of a court order as part of our opposition.
Our opposition Is due 12/27. So we ask that you respond today. Thanks.

Rod

From: Schoenberg, Tony (28) x4963
Sent: Monday, November 28, 2011 2:21 PM
To: 'Pozza, Duanel

Subject: document clawback
DuaneWe hereby requestthe destruction of 27 documents pursuant to paragraph 20 of the protective order. These
documents, HF02159263, HF02835468, HF02835472, HF02860466, HF02860550, HF02860552, HF02861582,
HF02861720,HF02861721,HF02861723, HF02863352, HF028633S~ Hf02863354, HF0286344~ HF02863466,
HF02863467,HF02865736,HF02865737,HF0286573~ HF02866338,HF02866339,HF0286667~HF02866671,

HF02866672,.HF02867217, HF02867218, and HF02867647, were inadvertently produced. Each of the docurnents Is

I··
r::

Case 1:11-cv-20427-KMW Document 206-5 Entered on FLSD Docket 12/27/2011 Page 3 of 3

i'

protected by the attorney-client privilege and/or constitute protected work product. Please. confirm that you have
destroyed all copies of these documents.
Regards,
Tony

. Anthony P. Schoenberg
Attorney at Law

1':\,..1111 Bratln :1' Martel LU'
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO I CA 94104

T 415.954.4400
D 415.954.4963
1'415.954.4480·.
www.ilirn.cJ1LU

.;

l