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

Filing 371

MOTION to Strike Defendants' Motion and Memorandum of Law to Strike the Declaration of Jennifer V. Yeh Filed in Support of Plaintiffs' Opposition to Defendant Anton Titov's Motion for Summary Judgment and to Defendant Hotfile Corp.'s Motion for Partial Summary Judgment by Hotfile Corp., Anton Titov. Responses due by 4/5/2012 (Attachments: # 1 Exhibit A)(Munn, Janet)

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.,
Counter-Defendant.
____________________________________/
DEFENDANTS’ MOTION AND MEMORANDUM OF LAW
TO STRIKE THE DECLARATION OF JENNIFER V. YEH
FILED IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANT ANTON TITOV’S MOTION FOR SUMMARY
JUDGMENT AND TO DEFENDANT HOTFILE CORP.’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

CASE NO.: 11-CIV-20427-WILLIAMS/TURNOFF
CITATION LEGEND
1.

“PSUF” shall refer to specific paragraph numbers of Plaintiffs’ Statement of

Uncontroverted Facts.
2.

“DSUF” shall refer to specific paragraph numbers of Statement of Undisputed

Material Facts In Support of Motion of Defendants Hotfile Corporation for Partial Summary
Judgment Based on the Digital Millennium Copyright Act Safe Harbor.
3.

“TSUF” shall refer to specific paragraph numbers of Statement of Undisputed

Material Facts In Support of Motion of Anton Titov’s Motion for Summary Judgment.
4.

“DRSF” shall refer to specific paragraph numbers of the Statement of Facts of

Defendants Hotfile Corporation and Anton Titov In Opposition to Plaintiffs’ Statement of
Uncontroverted Facts and Defendants’ Statement of Additional Material Facts.
5.

“Foster Decl.” shall refer to the declaration of Dr. Ian Foster in support of

Plaintiffs’ Motion for Summary Judgment Against Defendants Hotfile Corp. and Anton Titov,
dated February 17, 2012.
6.

“Yeh Decl.” shall refer to the declaration of Jennifer V. Yeh in support of

Plaintiffs’ Motion for Summary Judgment Against Defendants Hotfile Corp. and Anton Titov,
dated February 17, 2012.
7.

“Titov Decl.” shall refer to the declaration of Anton Titov in support of

Defendants’ Motion for Summary Judgment.
8.

“Titov Opp. Decl.” shall refer to the declaration of Anton Titov in support of

Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment.
9.

“Leibnitz Decl.” shall refer to the declaration of Andrew Leibnitz in support of

Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment.
10.

“Gupta Decl.” shall refer to the declaration of Deepak Gupta in support of

Defendants’ Motion for Summary Judgment.
11.

“Schoenberg Decl.” shall refer to the declaration of Anthony Schoenberg in

support of Anton Titov’s Motion for Summary Judgment.
12.

“Levy Decl.” shall refer to the declaration of Dr. Daniel S. Levy in support of

Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment.
13.

“Cromarty Decl.” shall refer to the declaration of Dr. Andrew Cromarty in

support of Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment.
-ii-

CASE NO.: 11-CIV-20427-WILLIAMS/TURNOFF
14.

“Boyle Decl.” shall refer to the declaration of Dr. James Boyle in support of

Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment.
15.

“Leibnitz Ex. __,” shall refer to exhibits attached to the Leibnitz Declaration.

16.

“Yeh Ex. __,” shall refer to exhibits attached to the Yeh Declaration.

17.

“Gupta Ex. __,” shall refer to exhibits attached to the Gupta Declaration.

18.

“Schoenberg Ex. __,” shall refer to exhibits attached to the Schoenberg

Declaration.
19.

“Boyle Ex. __,” shall refer to exhibits attached to the Boyle Declaration.

20.

“Thamkul Decl.” shall refer to the declaration of Janel Thamkul in support of

Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment.
21.

“Thamkul Ex. __,” shall refer to exhibits attached to the Thamkul Declaration.

22.

“Titov Reply Decl.” shall refer to the declaration of Anton Titov in support of

Defendants’ Reply in support of their Motion for Partial Summary Judgment.
23.

“DMSJ” shall refer to the Motion of Defendants Hotfile Corporation for Partial

Summary Judgment Based on the Digital Millennium Copyright Act Safe Harbor.
24.

“DOPMSJ” shall refer to Defendants’ Opposition to Plaintiffs’ Motion for

Summary Judgment Against Defendants Hotfile Corp. and Anton Titov.
25.

“PODMSJ” shall refer to Plaintiffs’ Opposition to the Motion of Defendants

Hotfile Corporation for Partial Summary Judgment Based on the Digital Millennium Copyright
Act Safe Harbor.
26.

“PMSJ” shall refer to Plaintiffs’ Motion for Summary Judgment Against

Defendants Hotfile Corp. and Anton Titov.
27.

“PCF” shall refer to Plaintiffs’ Counterstatement of Material Facts in Opposition

to Defendants’ Motion for Partial Summary Judgment Based on the Digital Millennium
Copyright Act Safe Harbor.

-iii-

INTRODUCTION
Plaintiffs again have filed an attorney declaration that is pervasively flawed and should
be stricken. In opposition to defendants’ motions for summary judgment, Plaintiffs submitted
another declaration by Jennifer V. Yeh, Plaintiffs’ outside counsel (the “Yeh Opposition
Declaration” or “Yeh Opp. Decl.”). The declaration and its exhibits suffer from an array of
evidentiary deficiencies, including unauthenticated documents, improper opinion testimony
regarding Hotfile’s supposed infringement, hearsay news articles used to insinuate falsely that
Defendants are similar to indicted nonparty MegaUpload, and unreliable translations.

LEGAL ARGUMENT
A declaration in opposition to summary judgment must “be made on personal knowledge,
set out facts which would be admissible in evidence, and show that the … declarant is competent
to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Strict adherence to the rules of
evidence are particularly important at summary judgment because opponents have no
opportunity to cross-examine declarants. The Williams Island Synagogue, Inc. v. City of
Aventura, 329 F. Supp. 2d. 1319, 1323 (S.D. Fla. 2004). As Plaintiffs did in their original
declaration by Ms. Yeh filed in support of Plaintiffs’ summary judgment motion, they continue
to ignore the rules of evidence.
I.

Content Owners’ Self-Serving Emails Are Inadmissible To Prove Repeat
Infringement and Alleged Failures to Terminate Hotfile.com Users.
Plaintiffs seek to offer into evidence pre-lawsuit emails by Plaintiffs and other content

owners alleging repeat infringement by Hotfile users and the alleged failure of Hotfile to
terminate them. Exhibits 141, 142, 147, 148, 149, and 150 to the Yeh Opposition Declaration
are made up entirely of such self-serving emails. Plaintiffs seek to use these emails to dispute
Hotfile’s proof that it typically removes, within 48 hours, any files identified as infringing, thus
entitling Hotfile to the Digital Millennium Copyright Act’s safe harbor protection. See Pls.’
Counterstatement of Material Facts in Opp. to Hotfile’s Mot. for Partial Summ. J. Based On the
Digital Millennium Copyright Act Safe Harbor 17; DSUF 17; Hotfile Mot. for Partial Summ. J.
at 15.

1

CASE NO. 11-20427-WILLIAMS-TURNOFF
All of these emails are inadmissible. First, they are hearsay. See Fed. R. Evid. 802.
Plaintiffs’ offer the emails to prove the truth of the following allegations: (1) Hotfile users made
unauthorized copies of copyrighted works, (2) the content owner had sent prior notices of alleged
infringement, (3) Hotfile received those prior notices, and (4) Hotfile did not remove the
material. See Pls.’ Counterstatement of Material Facts in Opp. To Hotfile’s Mot. for Partial
Summ. J. Based On the Digital Millennium Copyright Act Safe Harbor 17; see also, e.g., Yeh
Opp. Ex. 141 at DISNEY002835 (example of inadmissible email). 1 Second, the emails are not
self-authenticating and are not authenticated as excerpts of takedown notices to Hotfile. See Fed.
R. Evid. 901, 902; see also Yeh. Opp. Decl. ¶¶ 23–24, 29–32 (failing to authenticate Exhibits
141–142 and 147–150 as anything other than documents produced in discovery). Third,
portions of the exhibits state inadmissible legal conclusions, including that the work available at
Hotfile.com was infringing. See Yeh. Opp. Ex. 141 at DISNEY002835 (containing conclusory
allegation of infringement). Statements of legal conclusions by a party are not evidence and
therefore are not admissible. Fed. R. Civ. P. 56(c)(4) (summary judgment declarations must “set
out facts[,]” as opposed to legal argument) (emphasis added); Hollander v. Am. Cyanamid Co.,
172 F.3d 192, 198 (2nd Cir. 1999) (approving strike of affidavit containing “conclusory …
arguments”), abrogation as to unrelated holding recognized by Schnabel v. Abramson, 232 F.3d
83, 90 (2d Cir. 2000); Casella v. Morris, 820 F.2d 362, 364 (11th Cir. 1987) (infringement is
“legal conclusion”); Degelman Indus. v. Pro-Tech Welding & Fabrication, Inc., No. 06-CV6346T, 2011 WL 6752565, at *4 (W.D.N.Y. Dec. 23, 2011) (striking affidavit containing legal
argument); Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 835 (C.D. Cal. 2010) (excluding
copyright expert’s declaration because it stated legal conclusions); E.F. Hutton & Co. v. Brown,
305 F. Supp. 371, 383 (S.D. Tex. 1969) (affidavits must not be “burdened” by legal
conclusions). 2 Fourth, the evidence violates the rule of completeness because Plaintiffs failed to

1

These emails are not eligible for the hearsay exception for records of a regularly conducted
activity because Plaintiffs did not offer any of the corroborating testimony required to prove that
the conditions to obtain the exception have been met and because evidence indicates that
Plaintiffs’ methods of identifying copies of their works were not trustworthy. See Fed. R. Evid.
803(6)(D), (E); see also Reply Decl. of Jennifer V. Yeh in Supp. of Warner Bros. Entertainment
Inc.’s Mot. for Summ. J., Exs. T, U (evidence of false identifications).
2
Yeh Opposition Exhibit 146 is inadmissible for similar reasons. Exhibit 146 is a brief filed by
Hotfile’s opponent in an unrelated case, which Plaintiffs offer to support their argument that
2

CASE NO. 11-20427-WILLIAMS-TURNOFF
submit the attachments to some of the emails, rendering them impossible to comprehend fully.
See Fed. R. Evid. 106; see Yeh Opp. Ex. 141 at FOX025983, FOX026070 (each listing missing
attachment); Ex. 140 at HF115691, HF00236482 (same).

II.

Exhibits Compiling Unqualified Expert Opinion By Unnamed Persons Should Be
Stricken.
Plaintiffs attempt to support summary judgment with Exhibit 144, a chart in which

unnamed persons working under Ms. Yeh advance their unqualified expert opinions about
whether Plaintiffs’ works were infringed at Hotfile.com. This chart is virtually identical to
similar charts of hearsay and unqualified expert testimony to which Defendants already objected.
See Mot. and Mem. of Law of Defs. Hotfile Corp. & Anton Titov to Strike Portions Of the Decl.
of Jennifer V. Yeh Filed in Supp. of Pls.’ Mot. For Summ. J. and Any References in Pls.’ Mot.
For Summ J. or Statement of Facts to the Yeh Decl. and Its Attachments at 4–11(objecting to
Yeh Decl. Exs. 27, 29, 56, 106, and 119). Exhibit 144 states that various documents are
communications that Hotfile users sent after the Complaint was filed and that provide the URL
of the file each user had most recently downloaded. The chart then alleges the particular work
that Plaintiffs allege was infringed at each of those Hotfile.com URLs. Yeh Opp. Ex. 144.
Review of the underlying documents was done by unnamed persons, with unknown
qualifications, working under Ms. Yeh. See Yeh Opp. Decl. ¶ 26. Plaintiffs offer this as
evidence that Hotfile did not change its practices after the complaint was filed and therefore does
not qualify for the Digital Millennium Copyright Act safe harbor. See Pls.’ Mem. of Law in
Opp. To Def. Hotfile’s Mot. for Partial Summ. J. Based on the Digital Millennium Copyright Act
Safe Harbor (“Pls.’ Opp. To Partial SJ Mot.”) at 10 n.6.
Exhibit 144 should be stricken for several reasons. First, the opinions as to whether
Plaintiffs’ works are infringed are inadmissible legal conclusions. Casella, 820 F.2d at 364;
Hotfile knew that it had failed to terminate repeat infringers. The brief makes no such allegation,
but instead contends that Hotfile had not yet terminated all users accused of posting infringing
content, without making any statement that more than one notice was sent. In any event,
statements made by a litigation opponent in another case about what Hotfile allegedly did not do,
and the conclusion that there was infringing content on Hotfile.com are inadmissible hearsay and
legal conclusions.

3

CASE NO. 11-20427-WILLIAMS-TURNOFF
Hollander, 172 F.3d at 198. Second, the chart improperly attempts to offer expert testimony
about infringement by people who are not experts. There is no evidence that Ms. Yeh or any of
her unidentified supervisees are qualified as copyright infringement experts. See Fed. R. Evid.
702 (requiring qualification by knowledge, skill, experience, training, or education). Neither Ms.
Yeh nor any of her subordinates was disclosed as an expert or subject to expert discovery. See
Corwin v. Walt Disney World, Co., 475 F.3d 1239, 1252 (11th Cir. 2007) (expert’s affidavit
properly excluded on summary judgment where witness had not been disclosed by deadline for
expert witnesses). Third, Plaintiffs fail to provide the required evidence about the methods used
to reach the opinions, much less any evidence that the methods were reliable. See Fed. R. Evid.
702(c), (d) (requiring reliable expert methods and their reliable application). The Yeh
Opposition Declaration fails to identify which “[p]ersons under [Ms. Yeh’s] supervision”
conducted this analysis and provides no details as to the process by which they reached their selfserving conclusions. See Yeh Opp. Decl. ¶ 26. Ms. Yeh offers no explanation of the legal
standard applied, the relevance or reliability of the factors considered, or the scope of the
reviewers’ analysis. See id. Merely finding the title of a work in a URL is not a reliable way to
establish whether the URL links to a copy of the Plaintiff’s work. E.g., id., ex. 144 (indicating in
first line that URL links to an infringing copy of a work-in-suit entitled “2012” – a name which
also coincides with the current year). 3 Fourth, Ms. Yeh did not conduct the analysis herself and
therefore fails to establish personal knowledge. Fed. R. Evid. 602. Fifth, the statements of the
unnamed persons who created the chart are inadmissible hearsay. Sixth, Exhibit 144 was not
disclosed in discovery despite Plaintiffs’ evident intent to use it in support of their claims and
thus should be excluded as a sanction. See Fed. R. Civ. P. 37(c)(1) (discovery sanctions).

III.

Plaintiffs Seek to Impugn Hotfile With Irrelevant, Inadmissible Hearsay About
Other File-Sharing Sites.
Just as they did in their opening brief, Plaintiffs try to compare Hotfile to MegaUpload,

the operators of which were indicted for criminal copyright infringement. See PSUF ¶ 16(f)(iii);
Pls.’ Mot. and Mem. of Law In Supp. of Summ. J. Against Defs. Hotfile Corp. and Anton Titov

3

Moreover, any number of fair use scenarios could explain the presence of a URL containing the
title of a copyrighted work.
4

CASE NO. 11-20427-WILLIAMS-TURNOFF
at 32. Exhibit 145, the evidence now offered to prove this similarity, does no such thing and, in
any event, is irrelevant and inadmissible hearsay. Furthermore, the danger of unfair prejudice to
Defendants posed by this evidence substantially outweighs its probative value (of zero).
Exhibit 145 contains articles about the actions of various filesharing sites in the wake of
the Megaupload.com indictment. The articles describe how various sites changed their practices
and posit that the sites made these changes in an attempt to prevent similar indictments. Yeh
Opp. Ex. 145. Plaintiffs seek to use these articles to try to prove that Defendants improved
Hotfile.com’s procedures for protecting copyright in an attempt to avoid criminal prosecution,
not in a genuine attempt to prevent infringement. Pls.’ Opp. To Partial SJ Mot. at 4 n.2.
These articles are inadmissible because they are hearsay; because the actions and
motivations of other file-sharing sites unaffiliated with Hotfile.com are irrelevant to whether
Defendants are liable for copyright infringement; because the taint Plaintiffs wish to impart by
associating Defendants with the indicted operators of Megaupload.com is unfair and
substantially outweighs the articles’ probative value; because Plaintiffs did not produce these
articles in discovery; and because Ms. Yeh concedes she did not print the articles and therefore
lacks sufficient personal knowledge to state when they were printed and whether they are
authentic. See Dallas Cnty v. Comm. Union Assurance Co., 286 F.2d 388, 298, n.3 (5th Cir.
1961) (news articles almost always inadmissible hearsay); Fed. R. Evid. 403 (unfair prejudice);
Fed. R. Civ. P. 37(c)(1) (sanctions for failure to disclose).
IV.

Translations from Bulgarian to English Should Be Excluded For Failure to Show
Reliability of Translation and to Authenticate.
Several of Plaintiffs’ exhibits are inadmissible translations from the Bulgarian language.

Exhibits 132, 134, and 135 are emails that were translated from Bulgarian to English. They each
are accompanied by an affidavit in which the affiant states that “to the best of [her] knowledge
and belief” the translation is “true and accurate.” See, e.g., Yeh Opp. Ex. 132. Plaintiffs,
however, were required to prove that the interpreter was “qualified.” Fed. R. Evid. 604, Cf.
United States v. Hasan, 747 F. Supp. 2d 642, 679 (E.D. Va. 2010) (“defendants are entitled to a
written statement of [the interpreter’s] qualifications”). Without such proof, the court cannot
decide the preliminary question of the interpreter’s qualifications and therefore Plaintiffs fail to
carry their burden of showing that the evidence is admissible. To the extent the interpreter is

5

CASE NO. 11-20427-WILLIAMS-TURNOFF
testifying as an expert in the Bulgarian language, Plaintiffs were required to — but did not —
establish that she was a proper expert using acceptable methods. In addition, Plaintiffs failed to
authenticate these exhibits as accurately translated documents.
V.

Overall Lack Of Personal Knowledge Merits Striking the Entire Declaration.
Ms. Yeh begins her declaration with a statement that undermines any claim that the

declaration is based on her personal knowledge, as required. The entire declaration therefore
should be stricken, with the exhibits collapsing in turn. Ms. Yeh states that her declaration
statements are either “based on [her] personal knowledge” or are based on “information provided
to [her] by colleagues or other personnel working under [her] supervision on this case.” Yeh
Opp. Decl. ¶ 1. Sworn statements must be made on personal knowledge, and statements based in
part on information and belief cannot be considered on a summary judgment motion. Pace v.
Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002).

CONCLUSION
For the foregoing reasons, the Court should strike the Yeh Opposition Declaration and its
exhibits. A proposed Order is attached hereto as Exhibit “A.”

CERTIFICATE OF GOOD FAITH ATTEMPT TO RESOLVE

I hereby certify, pursuant to Local Rule 7.1(a)(3), that prior to filing this motion, I
conferred with Plaintiffs’ counsel in a good faith attempt to resolve by agreement the matters
raised in this motion, but that the parties were unable to reach agreement.

s/ N. Andrew Leibnitz

DATED: March 19, 2012

Respectfully submitted,

6

CASE NO. 11-20427-WILLIAMS-TURNOFF
s/ Janet T. Munn
Janet T. Munn, Esq. Fla. Bar No. 501281
Email: [e-mail]
RASCO KLOCK
283 Catalonia Avenue, Suite 200
Coral Gables, Fl 33134
Telephone: [phone]
Telecopy: 305.476.7102
And
s/ N. Andrew Leibnitz
Roderick M. Thompson, Esq.
(admitted pro hac vice)
Email: [e-mail]
Andrew Leibnitz, Esq. (admitted pro hac vice)
Email: [e-mail]
Anthony P. Schoenberg, Esq. (admitted pro hac vice)
Email: [e-mail]
Deepak Gupta, Esq. (admitted pro hac vice)
Email: [e-mail]
Janel Thamkul, Esq. (admitted pro hac vice)
Email: [e-mail]
FARELLA BRAUN + MARTEL LLP
235 Montgomery St.
San Francisco, CA 94104
Telephone: [phone]
Telecopy: 415.954.4480
And
Valentin Gurvits, Esq. (admitted pro hac vice)
Email: [e-mail]
BOSTON LAW GROUP
825 Beacon Street, Suite 20
Newton Center, MA 02459
Telephone: [phone]
Telecopy: 617.928.1802
Counsel for Defendants Hotfile Corporation
and Anton Titov

7

CASE NO. 11-20427-WILLIAMS-TURNOFF
CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2012, a true and correct copy of the foregoing
document, was filed conventionally and served on all counsel of record identified below via email and by Federal Express.
Karen L. Stetson, Esq.
GRAY-ROBINSON, P.A.
Email: [e-mail]
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Telephone: [phone]
Telecopy: 305.416.6887

Karen R. Thorland, Esq. (admitted pro hac vice)
Senior Content Protection Counsel
Email: [e-mail]
Motion Picture Association of America, Inc.
15301 Ventura Boulevard, Building E
Sherman Oaks, CA 91403-5885
Telephone: [phone]

Steven B. Fabrizio, Esq. (admitted pro hac vice)
Email: [e-mail]
Duane C. Pozza, Esq. (admitted pro hac vice)
Email: [e-mail]
Luke C. Platzer, Esq. (admitted pro hac vice)
Email: [e-mail]
JENNER AND BLOCK, LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Telecopy: 202.639.6066

By: s/ Janet T. Munn
Janet T. Munn

8