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

Filing 414

NOTICE by Hotfile Corp., Anton Titov Notice of Filing by Defendants Hotfile Corporation and Anton Titov of Filing the Publicly Filed Redacted Version of Defendants' Motion and Memorandum of Law to Strike the Declaration of Jennifer V. Yeh Filed in Support of Plaintiffs' Motion for Summary Judgment and any References in Plaintiffs' Motion for Summary Judgment or Statement of Facts to the Yeh Declaration and its Attachments (Attachments: # 1 Exhibit A)(Munn, Janet)

EXHIBIT A

PUBLIC VERSION
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.
____________________________________/
MOTION AND MEMORANDUM OF LAW OF DEFENDANTS
HOTFILE CORPORATION AND ANTON TITOV TO STRIKE
THE DECLARATION OF JENNIFER V. YEH FILED IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
ANY REFERENCES IN PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT OR STATEMENT OF FACTS TO THE
YEH DECLARATION AND ITS ATTACHMENTS

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TABLE OF CONTENTS

CITATION LEGEND .................................................................................................................. iii
INTRODUCTION .......................................................................................................................... 1
LEGAL ARGUMENT ................................................................................................................... 1
I.

The Blog Post Exhibits Are Inadmissible ........................................................................... 2

II.

The Exhibits Compiling Unqualified Expeli Opinion By Unnamed Persons
Should Be Stricken ............................................................................................................. 5
A.

Inadmissible Charts Summarizing Unqualified Opinion Testimony ..................... 5

B.

Demonstratives Providing Hearsay and Incompetent Expert Opinions ................. 9

III.

The COUli Should Exhibits That Purport To Depict Web Pages of Hotfile Affiliate
Sites ............................................................................................................. :.................... 11

IV.

Plaintiffs Impermissibly Suggest that Hotfile Is Like Other Targets of Antiinfringement Enforcement Actions .................................................................................. 11

V.

The Email Exhibits Should be Stricken ............................................................................ 13

VI.

Aliicle about Peer-to-Peer Networks Should Be Excluded .............................................. 14

VII.

Exhibits With Information From Supposed Third Party Research Firm Are Not
Admissible ........................................................................................................................ 14

VIII.

Overall Lack of Personal Knowledge Merits Striking the Entire Declaration ................. 15

CONCLUSION ............................................................................................................................ 16

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. TABLE OF AUTHORITIES
FEDERAL CASES

American Securit Co. v. Hamilton Glass Co.,
254 F.2d 889 (7th Cir. 1958) ...................................................................................................... 2
Casella v. Morris,
820F.2d 362 (11th Cir.1987) ................................................................................................... 6
Cody v. Harris,
409 F.3d 853 (7thCir. 2005) .............................................................................................. 13,16
Corwin v. Walt Disney World, Co.,
475 FJd 1239 (lIth Cir. 2007) .................................................................................................. 6
Dallas Cnty v. Commission Union Assurance Co.,
286 F.2d 388, 298, n. 3 (5th Cir. 1961) .................................................................................... 13
Dannenborg Rederi AS v. MlY True Dream,
428 F. Supp. 2d 1265 (S.D. Fla. 2005) ....................................................................................... 6
Degelman Industries v. Pro-Tech Welding & Fabrication, Inc.,
No.06-CV-6346T, 2011 WL 6752565 (W.D.N.Y. Dec. 23, 2011) ......................................... 6
Didion Milling, Inc. v. Agro Distributing, LLC,
No. 05-C-227, 2007 WL 702808 at *19 (E.D. Wis. Mar. 2, 2007) ............................................ 6

E.F. Hutton & Co. v. Brown,
305 F. Supp. 371 (S.D. Tex. 1969) ............................................................................................. 6
Ex Parte Yardley,
No. 2009-001146 (B.P.A.!. July 21,2009) ................................................................................. 6
Gable v. National Broadcasting Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010) ...................................................................................... 10
Hollander v. American Cyanamid Co.,
172 FJd 192 (2nd Cir. 1999) ............................................................................................... 6, 10
Horta v. Sullivan,
4FJd2(lstCir.1993) ....................................................................................................... 13,16
In re Homestore. com, Inc. Securities Litigation,
347 F. Supp. 2d 769 (C.D. Cal. 2004) ........................................................................................ 3
Ingless & Co. v. Everglades Fertilizer Co., Inc.,
255 F.2d 342 (5th Cir. 1958) .................................................................................................... 16
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Internet Law Library, Inc. v. Southridge Capital Management, LLC,
No. 01 Civ. 6600(RLC), 2005 WL 3370542 (S.D.N.Y. Dec. 12,2005) .................................... 7
Leigh v. Warner Bros., Inc.,
212 F.3d 1210 (11th Cir. 2000) ............................................................................................ 8, 14
Montgomery v. Aetna Casualty & Surety Co.,
898 F.2d 1537 (11th Cir. 1990) .................................................................................................. 8
Novak v. Tucows, Inc.,
No. 06-CV-1909(ARL), 2007 WL 922306 (E.D.N.Y. Mar. 6, 2007) ..................................... .4
Osborn v. Butler,
712 F. Supp. 2d 1134 (D. Idaho 201 0) ...................................................................................... .4
Pace v. Capobianco,
283 F.3d 1275 (11 th Cir. 2002) ................................................................................................ 16
Schnabel v. Abramson,
232 F.3d 83 (2d Cir. 2000) ......................................................................................................... 6
St. Clair v. Johnny's Oyster & Shrimp, Inc.,
76 F. Supp. 2d 773 (S.D. Tex. 1999) .......................................................................................... 3
St. Luke's Cataract & Laser Institute, P.A. v. Sanderson,
No. 8:06-CV-223-T-MSS, 2006 WL 1320242 (M.D. Fla. May 12, 2006) ................................ 3
Sun Prot. Factory, Inc. v. Tender Corp.,
No. 604CV7320RL19KRS, 2005 WL 2484710 (M.D. Fla. Oct. 7,2005) ................................ 3
The Williams Island Synagogue, Inc. v. City ofAventura,
329 F. Supp. 2d. 1319 (S.D. Fla. 2004) ...................................................................................... 1
United States v. Amuso,
21 F.3d 1251 (2d Cir. 1994) ....................................................................................................... 6
United States v. Carradine,
621 F.3d 575, 580 fn.1 (6th Cir. 2010) ..................................................................................... 10
United States v. Ford,
435 F.3d 204 (2d Cir. 2006) ..................................................................................................... 10
United States v. Jackson,
208 F.3d 633 (7th Cir. 2000) .................................................................................................. 3, 4
WrestleReunion, LLC v. Live Nation TV Holdings, Inc.,
No. 8:07-cv-2093-JDW-MAP, 2009 WL 2473686 (M.D. Fla. Aug. 9,2009) ......................... 14

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FEDERAL RULES AND REGULATIONS

Fed. R. Civ. P. 26 ............................................................................................................................. 7
Fed. R. Civ. P. 56(c)(4) ............................................................................................................. 1, 10
Fed. R. Evid. 106 ........................................................................................................................... 15
Fed. R. Evid. 402 ............................................................................................................. 2,4, 12, 15
Fed. R. Evid. 403 ....................................................................................................................... 2, 12
Fed. R. Evid. 802 ........................................................................................................................... 12
Fed. R. Evid. 602 ..................................................................................................................... 4,7, 8
Fed. R. Evid. 603 ............................................................................................................................. 5
Fed. R. Evid. 702 ............................................................................................................ ....... 5,9,11
Fed. R. Evid. 702(c) ......................................................................................................................... 7
Fed. R. Evid. 702 (d) ....................................................................................................................... 7
Fed. R. Evid. 703 ........................................................................................................................... 11
Fed. R. Evid. 80 1 ........................................................................................................................... 15
Fed. R. Evid. 801(d) ...................................................................................................................... 11
Fed. R. Evid. 802 ........................................................................................................................... 15
Fed. R. Evid. 901 ......................................................................................................................... 3,7

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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 and Anton Titov 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 Sunnnary 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 Sunnnary Judgment.
S.

"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

Defendants' Opposition to Plaintiffs' Motion for Summary Judgment.

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"Cromarty Dec!." shall refer to the declaration of Dr. Andrew Cromarty in

support of Defendant's Opposition to Plaintiffs' Motion for Summary Judgment.
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.

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INTRODUCTION

In support of their Motion for Summary Judgment, Plaintiffs submit the declaration of
Jennifer Yeh -

an associate at Jenner & Block -

and 119 accompanying exhibits. The Yeh

Declaration and its exhibits contain a broad alTay of evidentiary deficiencies, from
unauthenticated screenshots and internet b10g posts to chat1s seeking to provide improper expert
assessment of the likelihood that copyright infringement has occml'ed. Plaintiffs attach no fewer
than eight exhibits consisting of anonymous Internet formn posts that were not produced or
identified in discovery. This cyber-scrawl is unauthenticated hearsay. Equally objectionable are
the charts Plaintiffs append to the Yeh Declaration, allegedly summarizing various analyses
undertaken by unidentified people working under her supervision. Aside from the lack of
authentication of these exhibits, their content purp011s to be expel1 opinion of Ms. Yeh, who is
not qualified and never was disclosed as an expert - even assuming that Plaintiffs could properly
put their own counsel on the witness stand to attest to the ultimate legal conclusions in the case.
Also improper is Yeh Exhibit 98, a copy of the criminal indictment in United States v. Dotcom
that illustrates how Plaintiffs impermissibly seek to taint Defendants by association with an
accused infringer, Megaupload.com. Plaintiffs treat the indictment's unproven allegations as
facts, citing them as purported evidence of Hotfile's wrongdoing. Plaintiffs' submissions are not
evidence, and should be stricken.
LEGAL ARGUMENT

A declaration offered to support a motion for smnmary 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 patticularly important at summary judgment because,
"[i]nasmuch as smnmary judgment procedure lacks the safeguat'd of cross-examination of an
affi[ ant], it is important that it be shown that he is competent to testify to the matters therein
stated and that the facts to which he sweat·s are admissible under the rules of evidence." The
Williams Island Synagogue, Inc. v. City ofAventura, 329 F. Supp. 2d 1319, 1323 (S.D. Fla.
2004), quoting Am. Securit Co. v. Hamilton Glass Co., 254 F.2d 889, 893 (7th Cir. 1958).
Instead of strictly adhering to the rules of evidence, Plaintiffs cast them aside in their zeal to
accuse Defendants of infringement.

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I.

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

The B10g Post Exhibits Are Inadmissible
Plaintiffs seek to use inadmissible, anonymous postings on Internet forums to support

their contention that Defendants failed to terminate users accused repeatedly of infringement and
to support the claim that Defendants used infringing content to illustrate Hotfile.com. Yeh Exs.
22,48; Yeh Dec!.

~~

23,49; PSUF ~ 4(e) (citing Yeh Ex. 22); PSUF ~ 10(e)(iii) (citing Yeh Ex.

48); Pis.' Mot. and Mem. of Law In Supp. ofSumm. J. Against Defs. Hotfile Corp. and Anton
Titov ("Pis.' MPA") at 15 (citing PSUF ~ 10 (e) (iii», at 11, 30-31 15 (citing PSUF ~ 4(e». Such
postings are the archetype of unreliable evidence and should be excluded as unauthenticated,
irrelevant hearsay. 1
According to Ms. Yeh's declaration, Exhibit 22 is a "screenshot of the Digital Point
Forum titled 'File hosting affiliate program presentation,' dated April 18, 2009, printed on July
26,2011 from the indicated URL." Yeh Dec!. ~ 23. Plaintiffs cite Exhibit 22 to support the
contention that "Defendants had no policy or practice oftenninating users who were the subject
of multiple infringement notices or otherwise identified as infringers." PSUF ~ 4(e).
Specifically, the contention is p\U'portedly supported by an anonymous blog comment by
someone using the screen name "campolar," stating:
Yes, porn and warez are allowed. They will stay on the server until they are
reported. If any of you files are reported by a real representative (see
http://hotfile.com/reportabuse.html ), then the file will be deleted, but YO\U' account
credit will not be removed, and you will not be suspended from hotfile.com.
Yeh Ex. 22 at 5. There is no evidence of the true identity of "campolar."
Anonymous website forum postings such as Exhibit 22 are the digital equivalent of
graffiti. Such postings reveal nothing about the writer's identity beyond an assumed name,
making it impossible to even foreclose the possibility that the posting was made by Plaintiffs
themselves. Fmthermore, without admissible evidence about to how the website was operated,
there is no way even to verify the date of the post.
Exhibit 22 therefore is inadmissible for lack of authentication, hearsay, ilTelevance, lack
of competence, and high risk of unfair prejudice. Plaintiffs offer nothing to authenticate Exhibit
1 Although

Yeh Exhibits 22 and 48 are perhaps the blog post evidence by Plaintiffs that most
egregiously violates the Federal Rules of Evidence, several others fail due to the same objections
of lack of authentication, hearsay, irrelevance, unfair prejudice, and fai1\U'e to produce in
discovery and disclos\U'e. See Fed. R. Evid. 402, 403801,802,901; Fed. R. ofCiv. Proc.
26(a)(1) .. These are Yeh Exhibits 58, 60, 61, 63, 64, and 86.
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22 under Federal Rule of Evidence beyond Ms. Yeh's statement that it is true and correct as of
the date it was printed. Yeh Dec!.

~

23. Authentication is a "condition precedent to

admissibility." Fed. R. Evid. 90 I. This requirement is satisfied by "evidence sufficient to
support a finding that the item is what the proponent claims it is." Id. Websites are not selfauthenticating. St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223-T-MSS,
2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006); Sun Prot. Factory, Inc. v. Tender Corp., No.
604CV7320RL19KRS, 2005 WL 2484710, at *6 n. 4 (M.D. Fla. Oct. 7,2005). Here, to
authenticate Exhibit 22, Plaintiffs would have to present evidence that the 2009 dates on the cited
patts of the website were accurate, despite their printing in 2011, and that the content of the
posting had not been adulterated. To provide that evidence, Plaintiffs would need "some
statement or affidavit from someone with knowledge [ofthe website.] ". For example, [a] web
master or someone else with personal knowledge would be sufficient." St. Luke's Cataract &

Laser Inst., 2006 WL 1320242, at *2, citing In re Homestore.com, Inc. Sec. Litig., 347 F. Supp.
2d 769,782 (C.D. Ca!' 2004) see also United States v. Jackson, 208 F.3d 633, 638 (7th Cir.
2000) (ruling that Web po stings offered as statements of the groups named in the posts as
authoring them were not properly authenticated because there was no showing that the groups
actually authored them); St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773,774-75
(S.D. Tex. 1999) ("Anyone can put anything on the Internet. ". Moreover, the Court holds no
illusions that hackers can adulterate the content on any web-site from any location at any time.").
Nor do Plaintiffs provide evidence of who printed the pages, so there is no valid proof that the
pages were printed from the URL mat'ked on the pages' headers or that the printing was done on
the alleged 2011 date. Ms. Yeh does not claim any personal knowledge of those facts. Yeh
Dec!. ~~ 1,23.

2

Even if Plaintiffs had authenticated the blog posts, they nevertheless would be excluded
as hearsay. See Fed. R. Evid. 402; see also Jackson, 208 F.3d at 637 (web postings were
hearsay); Osborn v. Butler, 712 F. Supp. 2d 1134, 1147 (D. Idaho 2010) ("written content of the
website pages is inadmissible hearsay ... and Plaintiffs motion to strike will be granted");

Indeed, Plaintiffs do not seem to properly appreciate the meaning of "personal knowledge,"
given that their attorney declares that the statements in her declaration "are based on my p~rsonal
knowledge including on information provided to me by colleagues or other personnel working
under my supervision on this case." Yeh Dec!. ~ 1. The truth of information provided by
someone else is not within a declarant's personal knowledge.

2

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Nightlight Sys. v. Nitelites Franchise Sys., 1:04-CV-2l12-CAP, 2007 WL 4563875, at *7 (N.D.
Ga. May 11,2007) (,,[TJhe web pages ... would only be probative of what they show on their
face, not for the truth ofthe matters contained therein, unless the plaintiffs offered a competent
witness to testify to the truth of such matters. The plaintiffs have not, however, offered such a
witness."); Novak v. Tucows, Inc., No. 06-CV-1909(JFB)(ARL), 2007 WL 922306, at *5
(E.D.N.Y. Mar. 6,2007) ("Where postings from internet websites are not statements made by
declarants testifying at trial and are offered to prove the truth of the matter asserted, such
postings generally constitute hearsay .... ").
The blog posts are offered only for the truth of the matters asserted. In Exhibit 22, the
"matter asserted" is the approach Defendants allegedly took toward accused infringers. In
Exhibit 48, the "matter asserted" is that Defendants used infringing material to illustrate
Hotfile.com. Plaintiffs do not assert that they offer either exhibit for a non-hearsay purpose, such
as showing Defendants lmowledge of the contents of the blogs. Nor could they, given that
Hotfile personnel who posted to the same blog did not do so around the same time and did not
post on the same topics. See Exs. 22, 48 (posting of "ButcherBoy," the screen name of a
member of Hotfile contractor Andrew Ianakov). Even passing by graffiti does not make it
admissible. The exhibits therefore should be sh'icken as hearsay.
Similarly, the postings in Exhibit 22 also fail to show that the anonymous speaker had
personal knowledge of how Hotfile.com worked. See Fed. R. Evid. 602 (requiring personal
knowledge). Nor is there any other evidence in the record to show any such lmowledge or
provide any indicia that the posters were speaking truthfully (including obviously the lack of the
requisite oath or affirmation of truthful testimony). See Fed. R. Evid. 603 (oath or affirmation
required)?

II.

The Exhibits Compiling Unqualified Expert Opinion By Unnamed Persons Should
Be Stricken.
Plaintiffs attempt to support summary judgment with two categories of inadmissible

opinion evidence: first, a series of tables in which unnamed persons working under Ms. Yeh
The lack of probative value of these postings by anonymous people with no known affiliation
with Defendants renders the exhibits irrelevant or, at least, justifies their exclusion for unfair
prejudice. The exhibits set forth unfair and baseless accusations that Defendants did not
terminate repeat copyright infringers and illustrated their site with infringing material, while
having little, if any, probative value due to the posters' anonymity, the lack oflmown personal
knowledge, and the lack of proof that the blog's data has remained secure and unadulterated.
3

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advance their unqualified expert opinions about Hotfile.com downloading practices and even
legal conclusions; and second, a series of hearsay demonstrative exhibits that contain further
unqualified opinion.
A.

Inadmissible Charts Summarizing Unqualified Opinion Testimony

Exhibits 27, 29, 56, 106, and 119 and their accompanying paragraphs of the Yeh
Declaration (28,30,67, 107, and 120) should be excluded from evidence because they are not
based on personal knowledge and contain unqualified opinion testimony by undisclosed and
unnamed witnesses.
Exhibit 29 and the accompanying paragraph 30 of the Yeh Declaration embody the most
egregious violations among this subset of exhibits. This paragraph and the exhibit consist of a
chart supposedly summarizing a review of files downloaded from Hotfile.com by Hotfile
personnel. Yeh Decl.

~

30. The review was done by unnamed persons, with unknown

qualifications, working under Ms. Yeh. Id. After applying unspecified criteria in their review,
these unnamed persons reach legal conclusions concerning whether the files were "highly likely
infringing." Id.; Yeh Ex. 29. This exhibit should be stricken on multiple, independent grounds.
First, the chart improperly attempts to offer expert testimony on the issue of infringement

from non-experts and therefore should be excluded. 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 expelt or subject to expert discovery. See
Corwin v. Walt Disney World, Co., 475 FJd 1239, 1252 (lIth Cir. 2007) (expelt's affidavit

properly excluded on summary judgment where witness had not been disclosed by deadline for
expert witnesses).
This attempt to submit "expert fact testimony" from non-experts is particularly telling
because Plaintiffs designated attorney Scott Zebrak as a purported expelt in copyright law. Like
Ms. Yeh and her unidentified subordinates, Mr. Zebrak examined a sampling of files fi'om
Hotfile.com and opined as to whether they likely infringed a copyright. The two analyses are
nearly identical, right down to the nomenclature used ("highly likely infringing"). By submitting
them both, either Plaintiffs have conceded that Mr. Zebrak's "expert" report is no such thingbecause even the apparently unqualified reviewers can perform an identical analysis -

or

Plaintiffs improperly attempted to present lay witnesses as experts despite not disclosing them to
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allow for expert discovery. See e.g., United States v. Amuso, 21 FJd 1251, 1263 (2d Cir. 1994)
("A district court may commit manifest error by admitting expert testimony where the evidence
impermissibly mirrors the testimony offered by fact witnesses" .. ").
Second, even if Ms. Yeh and her subordinates were qualified and disclosed as experts,

their opinion as to whether files are "highly likely infringing" is an inadmissible legal conclusion
that invades the province ofthe judge and/or is legal argument masquerading as evidence.
Casella v. Morris, 820 F.2d 362, 364 (11 th Cir. 1987) (infringement is "legal conclusion"). The

legal opinion of a party's outside counsel is not evidence, and it may not be considered in
adjudicating s summary judgment motion. Hollander v. Am. Cyanamid Co., 172 FJd 192, 198
(2nd Cir. 1999) (approving strike of attorney affidavit containing "conclusory statements and
arguments"), abrogation as to unrelated holding recognized by Schnabel v. Abramson, 232 F.3d
83,90 (2d Cir. 2000); Degelman Indus. v. Pro-Tech Welding & Fabrication, Inc., No. 06-CV6346T, 2011 WL 6752565, at *4 (W.D.N.Y. Dec. 23,2011) (striking attorney affidavit
containing legal argument); Dannenborg Rederi AS v. M/Y True Dream, 428 F. Supp. 2d 1265,
1268 (S.D. Fla. 2005) (striking counsel's affidavit for consisting of "statements that constitute
argument"); E.F. Hutton & Co. v. Brown, 305 F. Supp. 371, 383 (S.D. Tex. 1969) (counsel's
affidavits must not be "burdened by legal arguments, summations, and conclusions); Ex Parte
Yardley, No. 2009-001146 (B.P.A.!. July 21, 2009); Didion Milling, Inc. v. Agro Distrib., LLC,

No. 05-C-227, 2007 WL 702808 at *19 (E.D. Wis. Mar. 2, 2007) (striking parts of attorney
affidavit containing "legal opinions and arguments"); Internet Law Library, Inc. v. Southridge
Capital Mgmt., LLC, No. 01 Civ. 6600(RLC), 2005 WL 3370542, at *3 (S.D.N.Y. Dec. 12,

2005) (striking attorney affidavit "more alan to a memorandum oflaw than to an attorney's
affidavit").
Third, Plaintiffs fail to provide the required evidence about what methods they applied in

reaching their 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). Plaintiffs
have not qualified Ms. Yeh or her subordinates to offer such a conclusion. The Yeh Declaration
fails to identify which "[p]ersons under [Yeh's] supervision" (presumably not attorneys, or
plaintiffs would have said so) conducted this analysis and provides no details as to the process by
which they reached their self-serving conclusion that certain files are "highly likely infringing".
Ms. Yeh offers no explanation of the legal standard applied, the relevance or reliability of the
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factors considered, or the scope of the reviewers' analysis. Nothing in the process undertaken by
Plaintiffs comports with the requirements of Federal Rule of Evidence 901 or Federal Rule of
Civil Procedure 26(a)(2).

Fourth, Ms. Yeh did not conduct the analysis herself and therefore she has failed to
establish personal knowledge of the asserted facts. Fed. R. Evid. 602.

Fifth, Exhibit 29 was not produced in discovery and therefore should be excluded as a
discovery sanction. E.g., Fed. R. Civ. P. 37(c)(I).
Paragraph 107 and related Exhibit 106 to the Yeh Declaration are inadmissible for similar
reasons. Ms. Yeh describes the document as "a summary chart of domains registered by certain
Hotfile Affiliates and the corresponding Hotfile user identification numbers ("userid") of the
registering Affiliates." Yeh Decl.

~

107. She then testifies, "As is evident from reviewing this

list, each of the domain names suggests that the website at the domain provides access to
copyrighted content." ld. Plaintiffs claim Exhibit 106 supports their statement that "The names
and home pages of Hotfile's Affiliates websites reference the availability of copyrighted
content[,J" PSUF ~ 10(d)(iii), and that "[fJrom their names alone, it is clear that a great many of
Hotfile's Affiliate linle sites are devoted to copyright infringement," PIs.' MPA 7.
This evidence is inadmissible expert testimony. As stated above, Ms. Yeh was not
disclosed as an expert, provides no evidence of any specialized knowledge, reliable methods, or
qualifying knowledge, skill, experience, or training. Her conclusions would not be within the
knowledge of a layperson: there is no reason why a layperson would think that
"perfectmusiconline.com," "todohdtv.com," or "more-mp3.ru," among the many similarly
named domains listed in Exhibit 106, suggest infringing activity. Like Exhibit 29 and for the
reasons stated above, Ms. Yeh's testimony and Exhibit 106 are not helpful to the trier offact.
Ms. Yeh also fails to show that she has personal knowledge of what constitutes the type of
domain name that refers to infringing, copyrighted material. See Fed. R. Evid. 602. She does
not even purpOlt to have drafted Exhibit 106, so it is unclear whether she was, in fact, its author
(and thus whether she had sufficient personal knowledge to draft it). Finally, testimony on legal
conclusions by a party's counsel is impelmissible. See, e.g., Montgomery v. Aetna Cas. & Sur.

Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (court abused its discretion by allowing witness to
testify that defendant had a duty to hire tax counsel, stating "[a] witness also may not testify to
the legal implications of conduct" ,,").
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In a similar vein, paragraph 120 and Exhibit 119 to the Yeh Declaration are inadmissible.
Ms. Yeh testifies, "[P]ersons under my supervision reviewed data of files uploaded to the Hotfile
Website and produced by defendants .... Using information such as filename, size, and other
metadata, we identified files that appeared to be copies of plaintiffs' copyrighted works. The
attached Exhibit 119 lists ... the filename and Hotfile URL of each uploaded file that appears to
correspond to one of plaintiffs' copyrighted works, and the name of the work to which it
corresponds. In total, we identified
owned by plaintiffs." Yeh Dec!.
allegation that "

~

files that appeal' to correspond to copyrighted works

120. The brief claims that this evidence supports the

unique Hotfile download links comprising

distinct motion

pictures and television programs for which the copyrights are held by plaintiffs." PIs.' MPA 10.
This information is not admissible because it is not based on the personal knowledge of
Ms. Yeh. Only "persons under [her] supervision" gathered the information used to generate the
conclusory statements in Exhibit 119 that the files' names, sizes, and other metadata indicated
that they were copies of Plaintiffs copyrighted works. (The conclusory nature of the statements
is enough to render them useless. See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (II th
Cir. 2000) ("conclusory allegations without specific supporting facts have no probative value").)
Ms. Yeh provides no reason to conclude that she had personal knowledge of the data on which
the conclusions were based. Because, as discussed above, she is not qualified or disclosed to
testify as an expert, she cannot opine that the metadata reliably shows that the files contain
copies of Plaintiffs' copyrighted works. Furthermore, she fails to disclose the file size and other
metadata on which the opinions supposedly were based. This again violates Federal Rule of
Evidence 702. Her testimony is also hearsay, given that she is testifying as to what other
(unnamed) people stated about the data, and those people never were deposed. 4
Even more substantively, Ms. Yeh's testimony reveals that she and those she supervised
never actually clicked on the links to the supposed copies of Plaintiffs' protected works or
otherwise reviewed the accused content, having only reviewed "filename, size, and other
metadata." Thus, she has no basis - hearsay or otherwise - to state conclusively what the files

For each of these same reasons, the chart submitted as Exhibit 56 must be stricken. It too
purports to "summarize" information compiled by unnamed people under Ms. Yeh's undefined
supervision. Yeh Dec!., ~ 57. Ms. Yeh's lack of personal knowledge of the alleged findings of
her reviewers set forth in Exhibit 56 renders this exhibit inadmissible.
4

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coritained. Her testimony and Exhibit 119 are thus revealed as conclusory statements without
probative value, if not outright irrelevant.
The chart at Yeh Exhibit 27 is flawed just like Yeh Exhibit 29, described above. Once
again, Ms. Yeh testifies that she supervised unidentified persons who analyzed Hotfile.com
users' communications to find references to Plaintiffs' copyrighted material. Again, this is
unqualified, undisclosed and improper expert opinion testimony. There is no description of the
methods use to reach the conclusions. Merely finding the title of work in a URL, moreover, does
not establish whether the URL links to a copy of the Plaintiffs' work. So, again, Ms. Yeh fails to
employ reliable methods to reach her opinions. 5 Finally, Ms. Yeh lacks personallmowledge of
the facts in Exhibit 27 because she relied on other people to gather information.
Finally, paragraph 57 of the Yeh Declaration and Yeh Exhibit 56 to it are objectionable
because they also contain similarly impermissible opinion testimony. Exhibit 56 is a spreadsheet
purporting to summarize information about certain files on Hotfi1e.com, including the title of the
work in the file, the file's URL, the work's copyright registration number, the plaintiff that owns
the work, and download data. Yeh Dec!. 'If 57. The files' contents were not reviewed by Ms.
Yeh; it was again the anonymous "[p]ersons under [her] supervision." [d. There is therefore no
personal knowledge to support Ms. Yeh's testimony. Moreover, she offers no basis to qualifY
the reviewers to conduct this type of technical analysis and offers legal conclusions about
infringement in the false guise of evidence.

B.

Demonstratives Providing Hearsay and Incompetent Expert Opinions

Defendants also objects to paragraphs 110 to 119 of the Yeh Declaration and the
accompanying Exhibits 109 through 118 to the Yeh Declaration, which are hearsay
demonstrative exhibits consisting of legal conclusions and argument that also cause Plaintiffs to
exceed the page limits of their briefing. Plaintiffs fill each exhibit with legal argument that has
no value as evidence. The legal assertions include that

of files downloaded from

Hotfile.com are "copyright infringements" (Yeh Ex. 110), "Hotfile Is No Different From Other
Adjudicated Infringers" including Napster and Grokster (Yeh Ex. 111), "Nearly All Hotfile
Uploaders Are Copyright Infringers" (Yeh Ex. 112), Hotfile failed to "Reasonably Implement A

Moreover, any number of fair use scenarios could explain the presence of a URL containing the
title of a copyrighted work.
5

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"Repeat Infringer" Policy" (Yeh Ex. 115).6 Such argument is not fact, and has no evidentiary
value. See Fed. R. Civ. P. 56(c)(4) (summary judgment declarations must "set outjacls[,]" as
opposed to legal argument) (emphasis added); Hollander, 172 F.3d at 198 (affidavit ''riddled
with inadmissible hearsay, conclusory statements and arguments ... more resemble[d] an
adversarial memorandum than a bona fide affidavit") (internal quotation marks omitted); Gable
v. Nat'! Broadcasting Co., 727 F. Supp. 2d 815,835 (C.D. Cal. 2010) (excluding expert report of
David Nimmer, author of copyright treatise, because it stated legal conclusions and "read much
like a third legal brief').
These Exhibits also should be stricken because Plaintiffs filed the longest permitted brief
(40 pages), causing their 10 pages of argument in Exhibits 109 through 118 to exceed the page
limit by 25 percent. See United States v. Carradine, 621 FJd 575, 580 fn.l (6th Cir. 2010)
(striking pages exceeding limit); United States v. Ford, 435 FJd 204,208-09,216 (2d Cir.
2006) (noting, but not deciding propriety of, district court order striking counsel's affidavit.
because it contained legal argument and exceeded page limit on memoranda of law).
Additionally, the portions of the exhibits that are not argument are either hearsay
reformulations ofthe opinions of Plaintiffs' experts or unqualified expert opinion fOlmulated by
Ms. Yeh herself. Neither are admissible. As discussed above, opinion testimony by Ms. Yeh
must be excluded under Federal Rules of Evidence 702 and 703 and because she ""as not
disclosed as an expert. Plaintiffs provide no information about who authored the exhibits. There
is thus no showing that the author has personal knowledge of the facts stated any of the exhibits.
It is evident from Ms. Yeh's declaration that the disclosed experts did not write the exhibits. See

Yeh Decl. ~ 110 ("Information contained in this exhibit [109] is based on data provided by Dr.
Ian Foster);

~

111 (Yeh Ex. 110 illustrates analysis by Dr. Richard Waterman),

~~

112-113, 117,

119 (Yeh Exs. 111-112, 116, 118 are based on data provided by Dr. Foster or Dr. Waterman).
Exhibits 109 t1n'ough 112, 116, and 118 repeat statements by the disclosed experts but none were
produced until after the experts' deposition. There was thus no opportunity for cross6 Other examples of argument fi'om the demonstrative exhibits include the following claims:
percent of files "promoted" by Hotfile are "infringing" (Yeh Ex. 109), certain files were
infringing copyright (Yeh Ex. 113), "Hotfile Users Overwhelmingly Identified As Infringing"
(Yeh Ex. 114), "Hotfile's Failure To Telminate "Repeat Infringers" Resulted In Massive
Copyright Infringement" (Yeh Ex. 116), "Nearly All Hotfile's Top 500 Affiliates ... [were]
Repeat Copyright Infringers" (Yeh Ex. 117), and
files were "infringing or highly likely
infi'inging" (Yeh Ex. 118).
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examination of experts on these exhibits. The hearsay exemption for deposed witnesses
therefore does not apply, and the evidence must be stricken. See Fed. R. Evid. 801(d) (stating
exemption).

III.

The Court Should Strike Exhibits That Purport To Depict Web Pages of Hotfile
Affiliate Sites
Yeh Exhibits 31 through 43, 85 through 86, and 102 through 103 are objectionable

printouts of web pages that Plaintiffs assert depict sites operated by "Hotfile Affiliates," each of
which uploaded files to Hotfile for sharing with other people. Of course, the statements on these
third parties' these sites are hearsay and suffer from the same lack of authentication as the blog
posts discussed above. Exhibit 43, consisting of 186 screen shots of various websites, is a
pmticularly serious example. Plaintiffs claim that it shows that Hotfile affiliate websites
"reference the availability of copyrighted content." PSUF ~ 10(d)(iii). But again, Ms. Yeh
offers no qualification or reliable method for determining what consist of a "reference [to1the
availability of copyrighted content." She has no apparent personal knowledge of the web pages;
she does not purport to have read them and states that she did not print them. Yeh Dec!. ~ 44.
The isolated screenshots are inauthentic at least to the extent that they are riddled with icons
representing the failure to print images appearing on-screen, Fed. R. Evid. 901, and incomplete
under Federal Rule of Evidence 106 to the extent excerpting home pages or websites. Nor is any
attempt made to authenticate these printouts as published by Hotfile affiliates. Finally, Exhibit
43 is irrelevant because each webpage was printed on February 13-14, 2012, which has no
bearing on the earlier period of time (as far back as Februm'y 2009) during which, Plaintiffs
allege, Defendants infringed Plaintiffs' copyrights.

IV.

Plaintiffs Impermissibly Suggest that Hotfile Is Like Other Targets of Antiinfringement Enforcement Actions
Plaintiffs seek to tar Defendants with four exhibits that Plaintiffs use to insinuate that

Defendants operated similarly to web sites against which the government or courts have taken
enforcement action. Yeh Decl.

~~

91, 95, 99,106; Yeh Exs. 90, 94, 98, lOS. Each of these

exhibits:
•

is irrelevant (Plaintiffs show no connection or factual similarity between
Hotfile.com and the other sites),

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•

CASE NO.: ll-ClV-20427-WILLIAMS/TURNOFF

consists of hearsay (the government authors of the exhibits were not deposed),
and,

•

has any probative value substantially outweighed by the danger of unfair

prejudice.
See Fed. R. Evid. 402, 403, 802. All of the exhibits also should be excluded because they were
not disclosed or produced in discovery and disclosure.
The most unfairly prejudicial of these exhibits is Exhibit 98, the Indictment in United

States v. Dotcom. In that case, the federal government accuses people and companies of criminal
copyright infringement for allegedly operating a website called Megaupload.com. Yeh Ex. 98 at
1-2. Plaintiffs transparently suggest that, if they can merely allege similarities between
Hotfile.com and the allegations against Megaupload.com, then Defendants must be infringers.
PSUF ~ l6(f)(iii); PIs.' MPA at 32. Plaintiffs cite tile accusations against Megaupload.com as

if they were facts. See PIs.' SUP ~ l6(f)(iii); PIs.' MPA 32. By definition, an indictment
contains unproven accusations. Plaintiffs fail to show any convictions in the Megaupload.com
case, nor are Defendants aware of any. Nor are there criminal charges against either Defendant.
This unfair insinuation should be stricken. First, The indictment is irrelevant. All it
states are accusations about Megaupload.com. Not a word of the indictment concerns
Hotfile.com or either Defendant. The indictment, i. e., accusations against a non-party with no
apparent affiliation to Defendants, has no tendency to make a fact material to the claims or
defenses in this case more or less probable than without the indictment. See Fed. R. Evid 401.

Second, the indictment is hearsay. It is by a grand jury that was never deposed; Plaintiffs offer it
to prove the truth of the accusations against Megaupload.com. PIs.' SUF 16(f)(iii); PIs.' MPA
32. No hearsay exception applies. Third, the indictment's accusations of the commission of a
number of criminal acts by persons unrelated to Defendants pose a serious risk that Defendants
will be unfairly tarred by the unfounded allegations of similarity to the Megaupload.com
defendants.
Like the Megaupload.com indictment, Exhibits 90, 94, and 105 also consist of irrelevant
hearsay that poses an undue risk of unfair prejudice to Defendants. Exhibit 90 is the 2011
"Administration's White Paper On Intellectual Property Enforcement Legislative
Recommendations." Plaintiffs cite its statement that "Piracy and counterfeiting in the online
environment are significant concerns for the Administration. They cause economic harm and
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threaten the health and safety of American consumers. Foreign-based and foreign-controlled
websites and web services raise particular concerns for U.S. enforcement efforts." Yeh Ex. 90 at
1. The White Paper is irrelevant because it has nothing to do with Defendants. It does not
mention Hotfile or Hotfile.com. See, generally, Yeh Ex. 90. Whether or not unnamed, foreign
websites and services raise some enforcement concerns is irrelevant to whether Defendants are
liable for copyright infringement. The statement is also hearsay. (None of the authors of the
White Paper were deposed.) Finally, Plaintiffs are again trying to lump Defendants in with
entities that allegedly violate the law in an attempt at guilt by association. This tactic would pose
an undue risk of prejudice even if the White Paper were somehow relevant.
Exhibit 94 to the Yeh Declaration is more ofthe same: a press release by U.S. Customs
and Immigration describing action against websites accused of copyright infringement. Plaintiffs
cite to it for the allegation "link sites [were] shut down by law enforcement." PSUF,
10(d)(3)(iii). Like Exhibits 90 and 98, Exhibit 94 is irrelevant because Defendants and
Hotfile.com are not mentioned in it and there no evidence Defendants are involved with the
infringement alleged in the press release. The press release is hearsay because it consists of
statements by a declarant that never was deposed and because it is offered for the truth of its
assertion that allegedly infringing link cites were shut down. Just like a news article, a press
release is a classic example of hearsay. See, e.g., Dallas Cnty v. Comm. Union Assurance Co.,
286 F.2d 388, 298, n. 3 (5th Cir. 1961) (news articles almost always inadmissible hearsay); Cody
v. Harris, 409 FJd 853, 858 (7th Cir. 2005) (news article was hearsay); Horta v. Sullivan, 4 F.3d
2, 8 (1st Cir. 1993) (news article was hearsay and not proper part of summary judgment record).
Finally, Plaintiffs again are attempting to unfairly tar Defendants by suggesting some connection
to the websites targeted by law enforcement.
Exhibit 105 is a copy of Civil Minutes from Warner Bros. Entertainment, Inc. v. Free-

TV- Video-Online.Info, in which the court granted a motion for partial summary judgment against
defendants. Yeh Ex. 105. The order is not cited as legal authority but instead for the allegation
that "link sites [were] ... found liable for copyright infringement." PSUF, 10(d)(3)(iii). Again,
this document is irrelevant because it has no connection to Defendants. It also should be
excluded for posing an undue risk of unfair prejudice by implying Defendants' guilt through

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vague suggestions that is it similar to other parties against which summary judgment was entered
in an unrelated case.

V.

The Email Exhibits Should be Stricl{en
The Court should strike paragraphs

and the related Exhibits

16~20,

17~2I,

26, 28, 30, and

27, 29, 31, and

66~68.

67~69

to the Yeh Declaration,

Each ofthese exhibits consists of emails,

many purpOliing to be from Hotfile customers. Plaintiffs offer the emails for the truth of the
matters asselied in them. The exhibits are therefore inadmissible hearsay. They also are not
authenticated. See WrestleReunion. LLC v. Live Nation TV Holdings, Inc., No. 8:07-cv-2093JDW-MAP, 2009 WL 2473686, at *8 (M.D. Fla. Aug. 9,2009) (evidence consisting of email not
allowed in opposing summary judgment where they were not authenticated). Finally, the email
authors' statements lack any demonstrated relevance.

VI.

Article about Peer-to-Peer Networks Should Be Excluded
Defendants also object to Exhibit 55 to the Yeh Declaration, a publication titled"". What

Peer-to-Peer Developers Need to Know about Copyright Law" and authored by an attorney who
was on the staff of the Electronic Frontier Foundation. Exhibit 55 is cited in support of the
contentions that "Defendants willfully blinded themselves to infringement on Hotfile[,]" by
"subcontracting" the "search function" for Hotfile.com to third pmiies, thus allegedly following
advice by the author of Exhibit 55 to " "disaggregate" functions to avoid liability[.]" PSUF'If
11 (b)(ii); Pis.' MPA 4, n.I. Exhibit 55 is inadmissible because it is inelevant. No evidence
exists that anyone at Hotfile saw an miicle evidently published three years before Hotfile's
launch. Moreover, it is an article with advice for people involved in peer-to-peer file-sharing
technologies, Ex. 55 at 1, but Hotfile, as Plaintiffs concede, is not a peer-to-peer network but
rather stores information on its own servers. Pis.' MPA 1. Any probative value whatsoever
would still be overwhelmed by the unfair prejudiced of associating Defendants with the "pirates"
who Plaintiffs claim were the intended audience of the micle. Id. In any event, Plaintiffs failed
to disclose the publication ~ which they have obviously had for some time ~ despite their
obligation to produce in discovery "all documents" that a pmiy "may use to support its claims."
Fed. R. Civ. P. 26(a)(1)(A)(ii).

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VII.

CASE NO.: l1-CIV-20427-WILLIAMS/TURNOFF

Exhibits With Information From A Supposed Third Party Research Firm Are Not
Admissible
The Court also should strike Yeh Exhibits 69 and 85 as irrelevant hearsay that violate the

rule of completeness. See Fed. R. Evid. 106, 402, 80 I, 802. Exhibit 69 is a printout of a
webpage published by Alexa Internet, Inc., purporting to show various data about Hotfile.com,
including the percentage of global Internet users who visited the site on a daily basis and the
percentage of global "pageviews" that were on Hotfile.com. Plaintiffs claim it shows that

MPA 12. Alexa Internet, Inc. was not deposed in this action
or disclosed as a witness. Exhibit 69's statements are therefore inadmissible hearsay.
Furthermore, Exhibit 69 is incomplete because the webpage contains links to portions that
explain the data and Plaintiffs did not introduce those portions. See Ex. 69 at 3 (Link to "Learn
more about Alexa Traffic Stats"). Exhibit 69 therefore should not be admitted under the Rule of
Completeness. Fed. R. Evid. 106. Finally, Exhibit 69 is irrelevant to the extent Plaintiffs
introduce it to show

. The submission's suggestion of a
nothing to prove or

disprove Plaintiffs' factual contention

and such

evidence should be excluded.
Yeh Exhibit 85 suffers similar infirmities. It is a news article about this lawsuit. In it, the
author cites to Alexa Internet, Inc. as the source for the assertion that, as Hotfile.com was the
57th most popular website. Yeh Ex. 85 at ~ 6. The author of the article was never deposed or
disclosed as a witness. His statements in the article are therefore classic hearsay and those about
the Alexa Internet statistic are hearsay within hearsay. See, e.g., Comm. Union Assurance Co.,
286 F.2d at 298 n. 3 (news articles almost always inadmissible hearsay); Cody, 409 F.3d at 858
(news article was hearsay); Horta, 4 FJd at 8 (news article was hearsay and not proper patt of
summary judgment record). The aIticie at Exhibit 85 is therefore inadmissible.

VIII. 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 declat'ation 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
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CASE NO.: II-CIV-20427-WILLIAMS/TURNOFF

[her] by colleagues or other personnel working under [her] supervision on this case." Yeh Dec!.
~

I. It is well established that 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 (11 th Cir. 2002).7
CONCLUSION
For the foregoing reasons, the Court should strike the Yeh Declaration and its Exhibits
and should strike the references and reliance on the Yeh Declaration and its Exhibits from
Plaintiff's Motion for Summary Judgment and accompanying Statement of Uncontroverted
Facts.
DATED: March 7,2012

Respectfully submitted,

7 The Comt also should strike paragraphs 16 and 25 of the Yeh Declamtion and related Exhibit
15 on the basis that she followed "inherently unsound practice" of counsel submitting factual
affidavits. See Ingless &: Co. v. Everglades Fertilizer Co., Inc., 255 F.2d 342, 349 (5th Cir.
1958). The Comt also should strike paragraph 15 of the Yeh Declaration and the accompanying
Yeh Exhibit 14 because it is a copy of a deposition exhibit which the deposition testimony
indicates contains highlighting but the document attached as Exhibit 14 lacks any indication of
highlighting. Accordingly, Exhibit 14 is irrelevant.
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CASE NO.: ll-CIV-20427-WILLIAMS/TURNOFF

~~9et T. Munn, Esq. Fla. Bar No. 501281
Email: [e-mail]
RASCO KLOCK
283 Catalonia Avenue, Suite 200
Coral Gables, Fl33134
Telephone: [phone]
Telecopy: 305.476.7102
And

(9J&~ iIJ0. 0!;t7!yfMviJ~ ~aut (J,.

Joderick M. Thompson, Esq. (admitted proaciei)
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

J?zt?~

A~~/.

~

/ (/~Esq. (admitted pm H(; (ftfllt (J.1Juuvr)j411~/{) )1m Fe)
Valentin Gurvits,
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

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CASE NO.: ll-CIV-20427-WILLIAMS/TURNOFF
CERTIFICATE OF SERVICE

I hereby certify that on March 7, 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: Karen [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

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