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

Filing 400

RESPONSE in Opposition re 318 MOTION for Partial Summary Judgment PUBLICLY FILED VERSION >PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT HOTFILE CORPORATION'S MOTION FOR PARTIL SUMMARY JUDGMENT BASED ON DIGITAL MILLENIUM COPYRIGHT ACT (AND ATTACHED DECLARATION OF JENNIFER V. YEH IN OPPOSITION TO HOTFILE CORP.'S MPSJ AND TITOV'S MSJ) (PUBLIC REDACTED VERSION) filed by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit Exhibits 125-129 to Declaration of Jennifer Yeh, # 2 Exhibit Exhibits 130-134 to Declaration of Jennifer Yeh, # 3 Exhibit Exhibits 135-139 to Declaration of Jennifer Yeh, # 4 Exhibit 140 to J. Yeh Declaration, # 5 Exhibit 141 to J. Yeh Declaration, # 6 Exhibit 142 to J. Yeh Declaration, # 7 Exhibit 143 to J. Yeh Declaration, # 8 Exhibit 144 to J. Yeh Declaration, # 9 Exhibit 145 to J. Yeh Declaration, # 10 Exhibit 146 to J. Yeh Declaration, # 11 Exhibit 147 to J. Yeh Declaration, # 12 Exhibit 148 to J. Yeh Declaration, # 13 Exhibit 149 to J. Yeh Declaration, # 14 Exhibit 150 to J. Yeh Declaration)(Stetson, Karen)

Yeh Exhibit 140

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.,

Plaintif,
v.

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

/
HOTFILE CORP.,

Counterclaimant,
v.

WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/
PLAINTIFFS' SECOND SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
DEFENDANT HOTFILE CORP.'S INTERROGATORY NO.1
Pursuant to Federal Rule of Civil Procedure 33 and Federal Rule of Civil Procedure
26( e)(1), Plaintiffs Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal

City Studios Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros.

Entertainment Inc., (collectively, "Plaintiffs") hereby provide the following Second

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Supplemental Responses, in Part, to Interrogatory Number 1 in Defendant Hotfie Corporation's

("Defendant" or "Hotfie") First Set ofInterrogatories (the "First Interrogatories"):

GENERAL OBJECTIONS
1. Plaintiffs object to the First Interrogatories to the extent that they call for the

disclosure of information subject to the attorney-client privilege, the joint defense or common

interest privilege, the work product doctrine or any other applicable privilege or doctrine. Any
inadvertent disclosure of such information shall not be deemed a waiver of the attorney-client
privilege, the joint defense or common interest privilege, the attorney work product immunity
doctrine, or any other applicable privilege or doctrine.
2. Plaintiffs object to the First Interrogatories to the extent that they call for the

disclosure of communications with, facts known by, or opinions held by non-testifying experts
retained pursuant or specially employed in anticipation oflitigation or preparation of

trial,

pursuant to Fed. R. Civ. P. 26(b)( 4)(B). Any inadvertent disclosure of such information shall not
be deemed a waiver of the protection against discovery afforded by Rule 26(b)( 4)(B) or any

other applicable privilege or doctrine.
3. Plaintiffs object to the First Interrogatories to the extent that they call for the

disclosure of information beyond that required by the Federal Rules of Civil Procedure or the
Local Rules of

the Court.

4. Plaintiffs object to the First Interrogatories to the extent that they are not

reasonably calculated to lead to the discovery of admissible evidence, and are ambiguous,
duplicative, vague, oppressive, harassing, overbroad or unduly burdensome.
5. Plaintiffs object to the First Interrogatories to the extent that they call for

information or documents created or maintained by Defendants, for information or documents

already in Defendants' possession, or for information readily accessible to Defendants in the

public record, on the grounds that it is unduly burdensome, oppressive, and harassing, and would
needlessly increase the cost of litigation.
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6. Plaintiffs object to the First Interrogatories to the extent that they are not limited

to time periods reasonably related to the matters at issue in this litigation. Specifically, Plaintiffs
object to the First Interrogatories to the extent that they seek the production by Plaintiffs of
documents or materials prepared, generated, duplicated, communicated, distributed, or

transmitted prior to Defendants' commencement of operations on Hotfie, as overbroad, unduly
burdensome, and seeking information neither relevant to this action nor likely to lead to the

discovery of admissible evidence. To the extent the Plaintiffs respond to the First Requests,

Plaintiffs will produce non-privileged responsive documents created on or after January 1,2009,

as this date is several months prior to Defendants' commencement of operations on the Hotfie

website. Plaintiffs are wiling to meet and confer with Defendants regarding whether a search
for documents prior to that date may be appropriate with respect to specific items or requests.
9. Plaintiffs object to the First Interrogatories to the extent they seeks unavailable

information or information not currently in Plaintiffs' possession, custody or control.
10. Plaintiffs object to the First Interrogatories to the extent that they seek proprietary

and confidential information not relevant to this proceeding, including but not limited to
information related to third parties.
11. Plaintiffs object to the First Interrogatories to the extent they seek the production

of confidential materials or materials relating to the Plaintiffs' trade secrets absent the entry of
suitable protective order.

Plaintiffs incorporate these General Objections into each specific response as if fully set
forth in each response.

OBJECTIONS TO SPECIFIC DEFINITIONS
"IDENTIFY" insofar as it

1. Plaintiffs object to the Interrogatories' definition of

Civil Procedure.

exceeds a responding party's obligations under the Federal Rules of

"RELATE," "RELATES,"

2. Plaintiffs object to the Interrogatories' definitions of

"RELATING TO," "REFER," "REFERRING," as vague, unduly burdensome, and as calling for

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attorney work product insofar as it requires Plaintiffs to determine what "show( s J" or
"evidenc( es J" a particular proposition.

The terms "PLAINTIFFS,"

3. Plaintiffs object to the Interrogatories' definitions of

"YOU," "YOUR" or "THE STUDIOS" insofar as they seek to require Plaintiffs to provide
interrogatory responses and information for entities other than the Plaintiffs, such as their

affliates and their law firms in matters other than the present action. Information in the
possession of

third parties, such as Plaintiffs' affiiates, agents, and outside counsel other than

counsel in the present action, is irrelevant and unduly burdensome to obtain. Plaintiffs wil
respond on behalf of the Plaintiff entities.

RESPONSES AND OBJECTIONS TO SPECIFIC INTERROGATORIES
INTERROGATORY NO.1:

IDENTIFY all files that were or are available through hotfile.com that YOU allege
infringe YOUR copyrights, including each of YOUR works that YOU allege the file infringed,

identified by name and United States copyright registration number, the URLs at hotfie.com
where YOU allege that file was available, and the time period when YOU allege the file was
present on hotfile.com.

PLAINTIFFS' SECOND SUPPLEMENTAL RESPONSE AND OBJECTIONS TO
INTERROGATORY

NO.

1:

Pursuant to Fed. R. Civ. P. 26(e)(2) and the Court's September 14,2011 Order, Plaintiffs

hereby provide the following second supplemental response to Interrogatory NO.1. Other than
the objections stated in Plaintiffs' previous responses to Interrogatory No.1, which are expressly
incorporated herein, Plaintiffs' response below supplements and supersedes Plaintiffs' previous

responses to Interrogatory NO.1. Plaintiffs additionally incorporate each General Objection and
Objection to Specific Definitions stated above as if set forth herein.
period of

Plaintiffs further object because, in the brief

time permitted by the Court and

the parties' stipulation, it is unduly burdensome and impossible as a practical matter for Plaintiffs

to identify each infringing fie on Hotfie.com for every work owned by the Plaintiffs ever since
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Hotfie began operating. The data necessary to identify such infringing files are, and have been,
in the possession of

Defendants; Plaintiffs only recently obtained access to certain of

those data

records pursuant to Court order, and stil have not obtained access to the content fies
themselves. Given additional time, Plaintiffs would be able to identify innumerable additional
instances of copies of

Plaintiffs' works on Hotfie.com. Further, given the opportunity to review

the content fies, Plaintiffs wil be able to make a more definitive assessment of particular files
that appear to infringe Plaintiffs' copyrights, and thus expressly reserve their right to supplement

this response after Defendants have produced the content files for each fie identified in Schedule
A hereto. Finally, insofar as Defendants' own electronic records contain the information sought
by this Interrogatory, particularly with respect to the dates on which each infringing file was

available on the Hotfie Website, Plaintiffs object that this Interrogatory is an impermissible
attempt to transfer to Plaintiffs the burden of analyzing data that Defendants can just as easily
analyze themselves.

BY EACH PLAINTIFF INDIVIDUALLY, IN RELEVANT PART:
Subject to and without waiving the foregoing objections, Plaintiffs state as follows:

Pursuant to the schedule set by the Court and the parties' stipulation, Plaintiffs have had only a
very limited period of time to attempt to identify instances of Plaintiffs' copyrighted works

available on Hotfie.com. In addition to those identified in this response, there are innumerable
additional instances that Plaintiffs would have identified with the benefit of additional time.

Infringing copies of these same copyrighted works, as well as infringing copies of new and

additional Plaintiffs' works, are also being uploaded to Hotfie.com on an ongoing basis.
Moreover, Plaintiffs have limited their response to this Interrogatory to copyrighted works the

rights to which are held by one of the named Plaintiff companies. There are untold numbers of
additional copyrighted motion pictures and television shows the rights to which are held by

Plaintiffs' affiiates that are being infringed through Hotfie.com.
Schedule A hereto identifies, by name and Hotfile.com URL, those fies on Hotfile.com
(which Plaintiffs have been able to identify in the time permitted) that Plaintiffs believe
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correspond to copies of Plaintiffs' copyrighted movies and television shows that have been

infringed and/or are continuing to be infringed through Hotfie.com. Pursuant to Defendants'
data production HF02835588, collectively, these copyrighted works have been infringed through

Hotfie.com more than 30 milion times.
Many of the fies (URLs) on Schedule A have been identified through data recently
produced by Defendants pursuant to Court order and for which Defendants have not yet

produced copies of the actual content files represented by the URLs. Plaintiffs have identified
these URLs based on the information (metadata) contained in the data produced by Defendants,
including the titles of

the works and other information about the files contained in Defendants'

data. Plaintiffs have requested that Defendants produce copies of the actual content fies
represented by each URL identified on Schedule A. As necessary, Plaintiffs will supplement this
Interrogatory response upon review of the content fies produced by Defendants.
For each copyrighted work identified in Schedule A, Schedule B hereto identifies the
Plaintiff that holds the rights to the work and the copyright registration number assigned to the
work by the United States Copyright Office.

With respect to the Interrogatory's request to provide "the time period when YOU allege

the file was present on hotfie.com," pursuant to Fed. R. Civ. P. 33(d), Plaintiffs refer Defendants
to information regarding the upload date and last download date of each file in Defendants' data

production HF02835588, which contains information regarding when each such fie was
available.

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VERIFICATION OF COLUMBIA PICTURES INDUSTRIES, INC.

I, Jared Jussim, am a corporate officer of Plaintiff Columbia Pictures Industries, Inc. and
am authorized to execute this verification on its behalf.

I have reviewed the interrogatory responscs containcd in Plaintiff's Second Supplemental

Responses and Objections to Defendant Hotfie Corp.'s Interrogatory No. 1. I am informed and
believe and on that basis allege that the matter started therein are true as to Plaintiff Columbia
Pictures Industries, Inc.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on October 3rd, 2011, at CuH1"r t-it/ , CA

Signature: ~ ~
¿:

Name (Print): Jared Jussim

Title: Executive Vice President,

Legal Affairs and
Assistant Secretary

VERIFICATION OF DISNEY ENTERPRISES, INC.
I have read the foregoing PLAINTIFFS' SECOND SUPPLEMENTAL RESPONSES
AND OBJECTIONS TO DEFENDANT HOTFILE CORP'S INTERROGATORY NO.1
and know its contents.

J am an offcer of Disney Enterprises, Inc., a party to this action, and am authorized to
make this vcrification on its behalf, and I make this verification for that reason. I am informed

and believe that the matter stated in the foregoing document are true.
Executed on October ~, 20 i i at ~LEAJl)Ac.fi ,CA.

1 declare under penalty ofper:iury under the laws ofthc United States that the foregoing is
true and correct.

Signature: 9.. -- D. ¥Q
Name (Print): James D. Hanford
Title: Assistant Treasurer

VERIFICATION OF WARNER BROS, ENTERTAINMENT INC.
I, Amanda Hicks, declare as follows:

I am the authorized agent for Plaintiff Warner Bros. Entertainment Inc. I have read the
foregoing Plaintiffs' Second Supplemental Responses and Objections to Defendant Hotfile
Corp.'s Interrogatory NO.1 and know its contents.
1 am informed and believe that the matters stated in the foregoing document are true.
Executed on October 3,2011, at Warner Bros. Studios, Burbank, California.

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

Signature:

QiyncvlO

tL~~C/2

Name:

Amanda Hicks

Title:

Manager, TV Production Insurance

VERIFICATION OF UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP.
I, Gabriela Kornzweig, pursuant to Fed. R. Civ. P. 33(b)(1) and 28 U.S.C. § 1746 declare
as follows:
Universal
I am Secretary for Universal City Studios Productions LLLP. On behalf of
City Studios Productions LLLP, 1 have reviewed the interrogatory responses contained in
Plaintiffs' Second Supplemental Responses and Objections to Defendant Hotfile Corp. 's
Interrogatory No. i. I verify that the answers of
Universal City Studios Productions LLLP
contained in the foregoing Supplemental Responses to Defendants' First Set oflnterrogatories
are true and correct to the best of my knowledge and belief, that I am authorized to so verify and
that as to matters stated therein that are not within my personal knowledge I have relied upon
information prepared by persons whom I believe to be reliable, based on information and records
maintained by Universal City Studios Productions LLLP in the regular and ordinary course of its
business.
I declare under penalty of

perjury under the laws of

the United States that the foregoing is

true and correct.

Executed on Octobe~, 2011, at Ù4MdrOG~4, CA
Signature:
Name (Print): 6øb 1'0", l!rllZ-

Title: -!~~:J

.....ï-=~,;.::¡~.

VERIFICATION OF TWENTIETH CENTURY FOX FILM CORPORATION
Information in Plaintiffs' Second Supplemental Responses and Objections to Defendant

Hotfie Corp.'s Interrogatory NO.1 was provided by me and/or gathered at my direction from
corporate records and personneL. I have reviewed the responses. I declare under penalty of
perjury of

the laws of

Twentieth

the United States that the foregoing responses as to Plaintiff

my knowledge and belief, based

Century Fox Film Corporation are tre and correct to the best of

on my review of such information.

Executed on October 3, 2011, at Los Angeles, CA
Signature:

~c~

Name:

Ronald C. Wheeler

Title:

Assistant Secretary

Dated: October 3, 2011

By PM ~
Duane C. Pozzi(

GRAY-ROBINSON, P.A.
Karen L. Stetson (FL Bar No. 742937)
1221 Brickell Avenue
Suite 1600

JENNER & BLOCK LLP

Miami, FL 33131

1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Phone: [phone]
Fax: [phone]

Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)

Phone: [phone]

Fax: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)

15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403

Attorneys for Plaintif

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.,

Plaintif,
v.

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

/
HOTFILE CORP.,

Counterclaimant,
v.

WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.

/

CERTIFICATE OF SERVICE
October, 2011, I served the foregoing Plaintiffs'
Second Supplemental Responses and Objections to Defendant Hotfie Corp.'s First Set of
Interrogatories on all eounsel of
record on the attached Service List via their email addressees) as
set forth on the Court's CM/ECF filing system per the parties' service agreement, as indicated on
I hereby certify that on this 3d Day of

the attached Service List.

I further certify that I am admitted pro hac vice in the United States District Court for the
Southern District of Florida and certify that this Certificate of Service was executed on this date

at Washington, D.C. -V P.

.~ )4/i

Duane C. Pozza

CASE NO. 11-20427-WILLIAMS/TURNOFF

SERVICE LIST

Disney Enterprises, Inc., et al. v. Hotfie Corp. et al.
CASE NO. ll-CIV-20427-WILLIAMS-TURNOFF

F ARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
tschoenberg~fbm.com
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]

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

Phone: [phone]

Fax: [phone]

Deepak Gupta

[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104

Attorney for Defendants Hotfle Corp. and
Anton Titov

Served via electronic mail by agreement

Phone: [phone]

Attorneys for Defendants Hotfle Corp. and
Anton Titov

Served via electronic mail by agreement
BOSTON LAW GROUP
Valentin Gurvits

825 Beacon Street, Suite 20

Newton Center, MA 02459
Phone: [phone]

Fax: [phone]
vgurvi [e-mail]

Attorney for Defendants Hotfle Corp. and
Anton Titov

Served via electronic mail by agreement

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