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

Filing 420

NOTICE by Hotfile Corp., Anton Titov of Filing PUBLICLY FILED REDACTED Version of the Declaration of Janel Thamkul Filed In Support of Memoranda In Support of Motions for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Munn, Janet)

EXHIBIT 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-JORDAN

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.
/
----------------------------------

PLAINTIFFS' THIRD SET OF REQUESTS FOR PRODUCTION

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Disney Enterprises, Inc.,
Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Columbia
Pictures Industries, Inc., and Warner Bros. Entertainment Inc. (collectively, "Plaintiffs") request
that Hotfile Corp. and Anton Titov (collectively, "Defendants") produce for inspection and
copying, or cause to be copied, the documents described below. Defendants shall make such
production within thirty (30) days after the service of these requests, at the offices of Jenner &
Block LLP, 1099 New York Avenue NW, Suite 900, Washington, D.C. 20001, c/o Duane C.
Pozza, in accordance with the Federal Rules of Civil Procedure, and in compliance with the
Definitions and Instructions set forth below.

DEFINITIONS AND INSTRUCTIONS
1.

The words "you," "yours," "yourselves," and "Defendants" means Anton Titov

and Hotfile Corp., and includes (i) any directors, officers, accountants, investigators, attorneys,
employees, agents, representatives or other persons acting, authorized to act, or purporting to act,
on behalf of Hotfile Corp. or Anton Titov; (ii) all of Hotfile Corp. ' s affiliates, divisions, units,
predecessors-in-interest, successors-in-interest, subsidiaries, parent corporations, and assigns;
(iii) any other person or entity otherwise subject to Hotfile Corp.'s or Anton Titov's control, who
controls Hotfile Corp., or is under common control with Hotfile Corp.
2.

The terms "Hotfile" and "Hotfile Website" mean the website accessible at

www.hotfile.com and hotfile.com and encompasses all servers, software, and databases operated
as part of the website.
3.

The term "Hotfile Entity" means Hotfile Corp., Hotfile, S.A., and Hotfile, Ltd., as

well as any entity involved with or that you claim is involved with the operation of the Hotfile
Website, as well as any entity controlled, operated, affiliated with, or owned by any Defendant,
in whole or in part, that performs or has performed any services related to the Hotfile Website,
and shall further include principals, executives, officers, directors, employees, agents,
representatives, or shareholders of such entity.
4.

The term "Lemuria" means Lemuria Communications Inc. ("Lemuria"), including

any principals, executives, officers, directors, employees, agents, representatives, or shareholders
of Lemuria, all of Lemuria's affiliates, divisions, units, predecessors-in-interest, successors-ininterest, subsidiaries, parent corporations, and assigns, and any other person otherwise
understood by you to be subject to Lemuria's control, who controls Lemuria, or is under
common control with Lemuria.

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5.

The singular shall include the plural and vice versa; the terms "and" or "or" shall

be both conjunctive and disjunctive; and the term "including" shall mean "including without
limitation. "
6.

"Date" shall mean the exact date, month and year, if ascertainable or, if not, the

best approximation of the date (based upon relationship with other events).
7.

The word "document" shall have the meaning of the term "documents or

electronically stored information" in Federal Rule of Civil Procedure 24(a)(1)(A).
8.

"Agent" shall mean any agent, employee, officer, director, attorney, independent

contractor or any other person acting at the direction of or on behalf of another.
9.

"Person" shall mean any individual, corporation, proprietorship, partnership, trust,

association or any other entity.
10.

The words "pertain to" or "pertaining to" mean relates to, refers to, regarding,

contains, concerns,

describes,

embodies, mentions,

constitutes, constituting,

supports,

corroborates, demonstrates, proves, evidences, shows, refutes, disputes, rebuts, controverts or
contradicts.
11.

The term "third party" or "third parties" refers to individuals or entities that are

not a party to this action.
12.

The word "identify," when used in reference to a document (including

electronically stored information), means and includes the name and address of the custodian of
the document, the location of the document, and a general description of the document, including
(1) the type of document (e.g., letter or memorandum) and, if electronically stored information,
the software application used to create it (e.g., MS Word or MS Excel Spreadsheet); (2) the
general subject matter of the document or electronically stored information; (3) the date of the

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document or electronically stored information; (4) the author of the document or electronically
stored information; (5) the addressee of the document or electronically stored information; and
(6) the relationship of the author and addressee to each other.
13.

The word "identify," when used in reference to a natural person, means and

includes the person' s full name, position and/or title, and present contact information. Stating
that a person can be contacted through counsel is not sufficient. If the person is a Hotfile user,
also state the person's account name and user ID.
14.

The term "Hotfile user" means any person who has directed his or her Internet

browser to the Hotfile Website or otherwise accessed the Hotfile Website, including any person
who has registered with the Hotfile website, any person who has at any time opened a
"Premium" account with the Hotfile website, and any person who has at any time been a
participant in any of the Hotfile Website's "Affiliate" programs.
15.

The term "Content File" means any electronic file uploaded to, stored on and/or

downloaded from the Hotfile Website by any Hotfile user at any time.
16.

The term "Affiliate programs" means all offers, programs or practices whereby

Hotfile users receive compensation from any Defendant or Hotfile Entity, including the
"Affiliate" program for uploading users and the "Referral" programs "for site owners" and
"Refer a friend" as described at htlp://www.hotfile.comlaffiliate.html.
17.

Documents maintained in electronic format shall be produced in accordance with

any ESI agreement in this Action.
18.

If any document is not produced on the basis of a claim of privilege or for any

other reason, identify the document with particularity, including without limitation the author(s),
any recipient(s), any other individual or entity to whom the document has been shown or

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transmitted, any other individual or entity with whom the document has been discussed, the
number of pages, attachments, and appendices, the date of the document, a description of the
subject matter sufficient to form the basis of a claimed privilege and to uniquely identify the
document, and a short statement of the nature of the claimed privilege or reason for withholding
production.
19.

Plaintiffs do not believe that Defendants may lawfully withhold documents on the

basis that they contain identifying information regarding specific Hotfile users.

Without

prejudice to Plaintiffs' right to seek the identity and additional information pertaining to such
users, Defendants may, in the first instance, limit their initial production of documents in
response to these Requests for Production containing individually identifying information of
users as described herein. With respect to the top 500 users and/or websites that have received
the greatest amounts of payments from Defendants related to Hotfile, Defendants may redact
information such as credit card statement or bank account information. Plaintiffs will meet and
confer in good faith regarding whether this information should be provided for a greater number
of users or websites. For all other database records, if Defendants intend to redact such records,
redactions will be done in a way that preserves the ability to identify the geographic location of
the Hotfile user (such as by providing city and state information or sufficient unredacted IP
address information), and that allows for the unique identification of the user such that an
individual user's activities may be identified even when examining different sets of data.
Plaintiffs invite Defendants to meet and confer regarding appropriate protocols for implementing
these limitations.

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20.

You are reminded to supplement your responses to these requests and your

documents produced in response to these requests in accordance with Rule 26 of the Federal
Rules of Civil Procedure.
REQUESTS FOR PRODUCTION
DOCUMENT REQUEST NO. 39:
All non-duplicative copies of each webpage that has ever been publicly available on the
Hotfile Website, including each webpage containing any policy or statement pertaining to the
Digital Millennium Copyright Act, copyright infringement, notifications of copyright
infringement, policies for terminating or disciplining infringers, or any agent or representative to
receive copyright notifications (collectively, "DMCA Information"), and documents sufficient to
show all dates for which each webpage was publicly available. In responding to this Request
No. 39 only, you may exclude link pages for individual Content Files, unless the link page
contains any DMCA Information that is not also contained on another webpage being produced
that was publicly available for the same time periods.
DOCUMENT REQUEST NO. 40:
All documents pertaining to any consideration, discussion or analysis regarding
implementation or use of functionality permitting searches for individual Content Files or URLs
on the Hotfile Website, including any reason why the Hotfile Website does not contain such a
search functionality.
DOCUMENT REQUEST NO. 41:
All documents pertaining to any instance in which you have taken, or have considered
taking, any disciplinary action against a website referring traffic to Hotfile, or the operator of
such a website (collectively, a "Referral Website"), for any reason pertaining to copyright

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infringement, or claims or notices of copyright infringement, including any instance in which
you have:
(a) terminated (or considered terminating) a Referral Website from the "Referral"
programs "for site owners" as described at http://www.hotfile.comlaffiliate.html;
(b) blocked (or considered blocking) Content File links that are hosted on a Referral
Website; or
(c) blocked (or considered blocking) communications with users being referred to Hotfile
by a Referral Website.
DOCUMENT REQUEST NO. 42
All documents pertaining to any disciplinary action, including termination, that you have
taken or considered taking against any Hotfile user, for any reason pertaining to copyright
infringement, or claims or notices of copyright infringement, subsequent to plaintiffs' filing of
this action against defendants on February 8, 2011, including:
(a) any criteria applied, instructions given or policies adopted for identifying users to be
disciplined or terminated, including any changes to the criteria, instructions or policies over time;
(b) any users considered, or preliminarily identified, for possible discipline or termination
but who ultimately were not disciplined or terminated for any reason;
(c) any communications with users;
(d) any communications, analyses or consideration of the actual or potential impact of
such user discipline or termination on your business, including traffic to the Hotfile Website,
sales of premium subscriptions, user or Affiliate defections or otherwise;
(e) any continued use of Hotfile by terminated users through alternative accounts or
otherwise;

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(f) any reinstatement of any terminated user for any reason; or
(g) any analysis of the demographic characteristics of any users disciplined or terminated,
including the geographic location of such users, whether such users were participants in any
Hotfile Affiliate programs, or whether such users were paying or free subscribers.

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Dated: June 14,2011

D
-

~_

By: lsi
Duane C. Pozz

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
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 Plaintiffs
GRAY-ROBINSON, P.A.
Karen L. Stetson (FL Bar No. 742937)
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Phone: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 14th Day of June, 2011, I served the following
documents on all counsel of record on the attached service list via their email address(es) as set
forth on the attached service list pursuant to the parties' service agreement:
Plaintiffs' Third Set of Requests for Production
I further certify that I am admitted pro hac vice to the United States Court for the Southern
District of Florida and certify that this certificate of Service was executed on this date at
Washington, D.C.

D~ ~ -t.

By: lsi
Duane C. Pozza

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SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. ll-CIV-20427-JORDAN

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
aleibnitz@,tbm.com
Deepak Gupta
dgupta@'fbm.com
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

RASCO KLOCK
Janet T. Munn
jmunn(a)rascoklock.com
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]

Attorney for Defendants Hotfile Corp. and
Anton Titov

Attorneys for Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]

Attorneys for Defendants Hotfile Corp. and
Anton Titov

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