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 4

From:[e-mail] [mailto:[e-mail]]

Sent: Tuesday, January 31, 2012 1:13 PM
To: [e-mail]
Subject: RE: Hotfile Schedule
I can't promise that.it will be done by noon Eastern, but it will be done during business hours California time.

Anthony P. Schoenberg
Attorney at Law

FareUa Braun + Martel LLP
RUSS BUILDING
235 MONTGOJ'v1ERY STREET
SAN FRANCISCO I CA 94104

T 415.954.4400
D 415.954.4963
.F 415.954.4480
www.fbm.com

From: Pozza, Duane [mailto:[e-mail]]
Sent: Tuesday, January 31,2012 1:08 PM
To: Schoenberg, Tony (28) x4963
Subject: Re: Hotfile Schedule
Tony,lshouid have the ftp information shortly. I actually think we should have our data ready to produce by noon
Eastern. Does that timing work for you? ThanksDuane

From: [e-mail] [mailto:[e-mail]]

Sent: Monday, January 30, 2012 06:03 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
Thanks. Yes, please arrange for an FTP site, and we can arrange to complete the production to the site duringbusiness
hours on Wednesday.

Anthony P. Schoenberg
Attorney at Law

FareUa Brann + Martel LLP
RUSS BUILDING
235 MONTGO]v[ERY STREET
SiLN FRil..NCISCO / CA 94104
1

T 415.954.4400
D 415.954.4963
F 41 5.954.4480
www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Monday, January 30, 2012 3:56 PM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony, in the interest of getting this done, we agree to your proposal from Friday afternoon. We can arrange an FTP for
the production, if you do not already have one set up. My preference is to have the data production done during
business hours if possible - please confirm you can do that on your end (my understanding from last week was that the
data production was already in progress). Thanks,
Duane

From: [e-mail] [mailto:[e-mail]]

Sent: Monday, January 30,20126:17 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule

'

Duane - We are not agreeing to provide any data past December23. I think I've made that abundantly clear.

AnthonyP. Schoenberg
Attoroey at Law

Farella Braun + l\fartel LLP
RUSS BUILDING
235l\lONTGO:MERY STREET
SAN FRf\NCISCO / CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Monday, January 30, 2012 i:07 PM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony, can you let me know where we stand on this? I am out of my office the rest of the day, but this will not take long
and I will give you a call if you have a time you are free. ThanksDuane

From: Pozza, DUqne
Sent: Monday, January 30, 2012 12:42 PM

2

To: [e-mail]'
Subject: RE: Hotfile Schedule

Tony,
It is not meant to be a moving target or a shift in what we are seeking. We just want to know whether data is being
extracted now (i.e., as of the last few days) without modification of any dynamic fields in the extraction. If your clients
are doing that, then we have no issue. If they're not, then it raises a question about what data we're getting -I don't
know of any process by which any dynamic fields (e.g., download counts) could be "reset" to Dec. 23. I'm just trying to
be clear on what we're getting. Please let me know so we can nail this down. Thanks,
Duane
From: [e-mail] [mailto:[e-mail]]

Sent: Monday, January 30, 2012 12:34 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule

Duane,
You have indicated on mUltiple o.ccasions that plaintiffs would agrE~eto supplementation through December 23, the last
day of fact discovery. You are now suddenly demanding - for the first time - supplementation of certain unidentified
data fields through the present date. Your sudden about-face is inconsis~entwith your prior statements on this topic,
contrary to the court's December 23 fact discovery cut-off, and is turning this process into a moving target. Our
proposal is clear. Let me know if you are willing to agree to it.
Regards,
Tony

Anthony P. Schoenberg
Attorney at Law

Farella Brann + ~fartel LLP
RUSS BUILDING
235 MONTG011ERY STREET
SAN FRil,NCISCO / CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Sunday, January 29, 2012 7: 10 PM
To: Schoenberg, Tony (28) x4963

Subject: RE: Hotfile Schedule
Tony,
We need to get confirmation that Hotfile is producing the current version of dynamic fields (or the version exported last
week if that is when the export was done), rather than producing versions ofthe dynamic fields reset in some way to
Dec. 23. If you can confirm that, we can agree to the terms as modified by your email on Friday.
Regards,
Duane

3

From: [e-mail] [mailto:[e-mail]]

Sent: Sunday, January 29, 2012 4:02 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
Duane - Can you confirm that plaintiffs agree to the terms of defendants' proposal, as modified in my email on Friday?
I'm working on getting an answer about dynamic fields.
Regards,
Tony

. From: Pozza, Duane [mailto:[e-mail]]
Sent: Sunday, January 29,20129:38 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony, I left you a voicemail on Friday afternoOli regarding the data production date issue. Let me know if you did not
receive it or if it is not clear. Can you confirm that any dynamic data fields (e.g., download counts) are being provided as
of the export date (i.e., in the last few days) rather than being reset in some way to what they were on Dec. 23? As I
mentioned, this question only concerns the dynamic fields, so we are clear on the scope of the data we are getting and
how to interpret it - we're fine with, for example, producing all the upload IDs and user suspension records created
through Dec. 23.
I can talk today or early tomorrow ifthis is unclear, but let's try to wrap this up. Thanks,
Duane

From: [e-mail] [mailto:[e-mail]]

Sent: Friday, January 27, 2012 4:33 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
Duane -You state that you will agree to our proposal, but our proposal states that "no further supplementation will·
occur." Your statement about"without prejudice to any.argumentto seek additional supplementation at anytime"
seems directly at odds with that. We want and are entitled to some finality on discovery. That is a key part of this
proposal for defendants. In order to compromise, we will agree to modify the proposal to state that "no further
supplementation will occur absent a stipulation or court order based upon a showing of good cause." Let me know if
you will agree to that. If you will, then we are in agreement, including the Wednesday production date.
Regards,
Tony

Anthony P. Schoenberg
Attorney at Law

Farella Brann + l',,'lartel LLP
RUSS BlJILDING
235 MONTGOMERY STREET
S~~N FRiv~CISCO / CA 941 04

T 415.954.4400
D 415.954.4963
4

F 415.954.4480
'vV'lw.fbm.com
From: Pozza, Duane [maflto:[e-mail]]

Sent: Friday, January 27, 2012 10:56 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony,
We will agree to your supplementation proposal below, without prejudice to any argument to seek any additional
supplementation at a later time, with the clarifications we have discussed: defendants will produce the data table
('Uploads" instead of "Uploadip," and Warner will supplement its response to Request 47 by producing any responsive,
non-privileged documents that it locates after a reasonable search subject to and without re-openlng dispute on its
original objections to RFP 47. As we discussed, we need to set a fixed date for th,e supplemental data productions, and I
believe it should benext Wednesday February 1. Ialso think we should agree to production of data by FTP.
Please confirm that defendants are in agreement.
Regards,
Duane
From: [e-mail] [mailto:[e-mail]]

Sent: Tuesday, January 24, 20128:39 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule

Duane,
Here is our proposal regarding supplementation. We will agree to supplement the data tables that you identified on the
phone last week as the ones for which plaintiffs seek supplementation (Userdat, Actiondat; Strikes, Affpay, Dmcanotices,
Usercownerupload, Payments, Uploaddownload, Dailydownload and Uploadip) as follows:
1.
2.
3.

4.

Supplemental data for both sides need only cover through Dec. 23, 2011, the date on which fact discovery
closed, and no further supplementation will occur;
The parties agree that they will not seek to modify the case schedule in any way based on the supplemental
productions;
The parties agree that they will not seek to supplement any expert report (if any) based on the supplemental
data other than the reports of Dr. Foster and James Boyle, and then only if the expert is made available for a
further deposition;
Plaintiffs
e that
2011.

Let me know ifplaintiffs are agreeable to these terms.
Regards,
Tony

Anthony P. Schoenberg
Attorney at Law

5

Farella Braun + Martel LLP
RUSS BUILDING
23 5 MONTGOMERY STREET

SAN FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Tuesday, January 24,2012 11:38 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
OK, we need to set an anticipated production date, and if we can't talk until tomorrow, please be ready with some
information on how long you expect production to take. We've said repeatedly that if we can't get a timely production
of the supplemental data, we're going to have to move to push the schedule back again. I don't see VJhy there should be
further delays merely to run database extractions.
I can talk at noon Eastern /9 Pacific tomorrow.
Thanks,
Duane

From: [e-mail] [mailto:[e-mail]]
.

Sent: Tuesday, January 24, 2012 12:22 PM
To: Pozza; Duane
Subject: RE: Hotfile Schedule
No, I don't. Let's talk tomorrow.

Anthony P. Schoenberg
Attorney a.t La\v

FareHa Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET

SAN.FRANCISCO! CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
VI'WW.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Tuesday, January 24, 2012 9:2.1 AM

6

To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony, we need to nail this down as soon as we can given the schedule - do you not have 15 minutes this afternoon to
talk? I'm available after 2 Eastern.
-

From: [e-mail] [mailto:[e-mail]]

Sent: Tuesday, January 24, 2012 11:52 AM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
Today is not good for me. I can speak tomorrow anytime before 11:30 PST other than from 10 to 10:30.

Anthony P. Schoenberg
Attorney at Law

FareUa Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
SAN FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480

www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]
Sent: Tuesday, January 24, 2012 8:50 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Tony, what's a good time to speak about this today?

From: Pozza, Duane

Sent: Monday, January 23 r 2012 8:34 PM
To: [e-mail]
Subject: RE: Hotfile Schedule
Tony, we spoke about this last Wednesday, so it's now been a few days to speak to your client. Notwithstanding the
"surprise," I'm not seeing the issue with supplementation of the data outside the "small universe" you reference - is
there some issue with burden? We are fine getting this in waves (e.g., actiondat, userdat, and the DMCA I SRA tables
first) if that's easier. Is there a good time to speak tomorrow?
Regards,
. Duane

From: [e-mail] [mailto:[e-mail]]
Sent: Monday, January 23, 20125:08 PM·
To: P~zza, Duane
Subject: RE: Hotfile Schedule
7

----4.---

Duane -Ifthere is to be any supplementation, our position would be that it should not extend beyond Dec. 23. At this
point, I do not have a further position to convey to you. As I told you on our call, our inclination had been to agree to
mutual supplementation through Dec. 23 when we believed that you Were seeking supplementation of a much smaller
universe ofdata files. Your unexpected and sudden request for a much larger universe of data files took us by surprise,
andwe are still considering how that effects our position.
Regards,
Tony

Anthony P. Schoenberg
Attorney-at Law

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTG01v1ERY STREET

SAN FRI\NCISCO / CA 94104

T 415.954.4400
D 415.954.4963

F 415.954.4480
www.fbm.com

From: Pozza, Duane [mailto: [e-mail]]

Sent: Monday, January 23,20121:55 PM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
I think supplementation at least until the end offact discovery is appropriate. I had understood your position on our call
to be that defendants were fine with supplementation until Dec. 23, 2011. I don't see that we need to get into anything
post-Dec .. 23 for the data at this time. Am I misunderstanding your position?
-Duane

From: [e-mail] [mailto:[e-mail]]

Sent: Monday, January 23, 201? 4:26 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
Duane- By your definition of relevance, it would seem that you would expect us to supplement until the day of trial. Is
that really your pOSition?

Anthon), P. Schoenberg
Attorney at Law

FareUa Braun + Martel LLP
RUSS BUILDING
23 5 MONTGOMERY STREET

SAN FRl\NCISCO / CA 94104

8

T 415.954.4400
D 415.954.4963
F 415.954.4480
www.fbm.com

From: Pozza, Duane [mailto:[e-mail]]

Sent: Monday, January 23, 2012 12:15 PM
To: Schoenberg, Tony (28) x4963

Subject: Re: Hotfile Schedule
Tony, apologies for the belated response in light of the depositions last Thursday and Friday. Given that we initially
requested supplementation of this data before the close of fact discovery, I don't think it's relevant whether fact or
expert discovery is over - this is information that we believe should have been provided prior to the close offact
discovery. But in any event, the data is relevant as a factual matter (in addition to clearly being relevant for expert
consideration). In short - and without attem pting to be com prehensive :- the tables Userdat, Actiondat, and Strikes
show information about user strikes and user terminations for infringement, which are relevant to Hotfile's DMCA
defense. The Dmcanotices and Usercownerupload tables show Hotfile's notice of particular infringing files (which may
be correlated to particular users). Affpay shows how much terminated users were paid, which is relevant to
inducement. Uploadip shows whether where a file uploader is located, and Uploaddownload and dailydownload show
number of downloads of files; all of those are relevant to showing direct infringement. And the Payments table is
relevant to showing financial benefit.
Have you had a chance to speak to your client about this? Is there an ETA on the supplementation?
Thanks,
Duane

From: [e-mail] [mailto:[e-mail]]

Sent: Wednesday, January 18, 2012 8:59 PM
To: Pozza, Duane

Subject: RE: Hotfile Schedule
Duane - I meant to ask on our call today, but why are plaintiffs seeking supplementation of allofthese data files (which
"ve.listed below)? Expert reports (and rebuttals) are complete.

Userdat
Actiondat
Strikes
Affpay
Dmcanotices
Usercownerupload
Payments
Upload download
Dailydownload
Uploadip

Anthony P. Schoenberg
Attorney at Law

9

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGO:MERY STREET
Siv~ FRA.NCISCO ! CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480

www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Wednesday, January 18, 2012 10:25 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
Yes, let's plan on that.

From: [e-mail] [mailto:[e-mail]]

Sent: Wednesday, January 18, 2012 1:16 PM
To: Pozza, Duane
Subject: RE: Hotfile Schedule
I have a noon meeting (which I'm leading). I could talk at 11:30. Will that work?

Anthony P. Schoenberg·
Attorney at Law

FareHa Braun + Martel LLP
RUSS BUILDING
235 MONTG01v1ERY STREET
S~ FRA.NCISCO! CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
www.fbm.com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Wednesday, January 18,2012 10:15 AM
To: Schoenberg, Tony (28) x4963
Subject: RE: Hotfile Schedule
I can talk at noon Pacific, but will be on a flight shortly thereafter. Does that work?

From: [e-mail] [mailto:[e-mail]]

Sent: Wednesday, January 18, 2012 12:17 PM
To: Pozza, Duane
.Cc: [e-mail]; [e-mail]; Fabrizio, Steven B; Platzer, Luke C
Subject: RE: Hotfile Schedule
10

Can you talk this afternoon? I'm tied up this morning.

Anthony P. Schoenberg
Attorney at Law

Farella Braun + Martel LLP
RUSS BUILDING
235 MONTGOMERY STREET
S.W FRANCISCO / CA 94104

T 415.954.4400
D 415.954.4963
F 415.954.4480
v,'WW. fbm. com
From: Pozza, Duane [mailto:[e-mail]]

Sent: Wednesday, January 18, 2012 7:49 AM
To: Schoenberg, Tony (28) x4963
Cc: Thompson, Rod (27) x444S; Leibnitz, Andrew (21) x4932; Fabrizio, Steven B; Platzer, Luke C
Subject: FW: Hotfile Schedule
Tony, are you available this morning to discuss the data supplementation (per email exchange below)? Let me know a
time that works best and I can give you a call. Thanks,
Duane

From: Fabrizio, Steven B

Sent: Tuesday, January 17, 20124:15 PM
To: [e-mail]; Pozza, Duane; [e-mail]
Cc: Platzer, Luke C
Subject: RE: Hotfile Schedule

Duane is in deposition so I will respond. First we are not linking the extension, which the court
said it would grant, with the data supplementation. They are separate.' We are just advising
you that, absent getting the data supplement forthwith, we may go back and ask the court to .
extend the schedule as a result of defendants' failure to supplement. We have been asking for
this supplement for weeks. All we have gotten in response is the same general non-answer
that you just gave. So, we propose the schedule Duane circulated. Ifwe get the data soon,
that should suffice. If we don't get the data soon, we are reserving our right to seek additional
time ..
Accordingly, please indicate whether you approve the schedule in Duane's email so we can get
it to the court asap.
5BF

11

From: [e-mail] [mailto:[e-mail]]

Sent: Tuesday, January 17, 2012 4:10 PM
To: Pozza, Duane; [e-mail]
Cc: Fabrizio, Steven B; Platzerr Luke C
Subject: RE: Hotfile Schedule·

Duane, you are correct about the timing of my trip to Hong Kong for my son's wedding.
Andl appreciate Plaintiffs' and the Court's willingness to work around that date.
The threat in your last line, however, is unfortunate and inappropriate. In response to .
Judge Williams' direct question, Plaintiffs agreed to this professional courtesy and did
not condition the schedule issue on anything else. We are checking on supplementing
the specific data you've asked about and trust you are doing the same with respect to
our requests. (Tony or I will discuss the timing and extent of supplementation byall
parties with you separately.) But there is no basis to tie the issues together.
Alternatively, if Plaintiffs would now prefer to stick to the current schedule, we can stili
live with it. Just let us know promptly so we can plan accordingly.
Rod
From: Pozza, Duane [mailto:[e-mail]]

Sent: Monday, January 16, 2012 6:29 PM
To: Thompson, Rod.(27) x444S; Leibnitz, Andrew (21) x4932
Cc: Fabrizio, Steven B; Platzer, Luke C
Subject: Hotfile Schedule

Rod,
Per the Court's direction at the status conference, below is a proposed schedule that extends the time for filing
the initial summary judgment motions and compresses the rest of the dates. 1 believe you said that you were
th
leaving the weekend of March 17-18 (correct me if I'm mistaken), and the proposed date of Monday the 19
date for the final reply reflects that the parties will be dealing with the filing mechanics on the due date rather
than finishing the brief itself.
The plaintiffs' agreement to this is subject to the caveat that we receive all outstanding supplemental data
immediately -I am sending a separate email on that.
Regards,
Duane

Friday, February 10, 2012

Motions for Summary Judgment on Hotfile
Corp.'s Counterclaim against Warner Bros.
Entertainment, Inc. ("Counterclaim") are filed.

12

Friday. February 17,2012
All other Motions for Summary Judgment
unrelated to the Counterclaim are filed.

Monday, February 27, 2012
Oppositions to Motions for Summary
. Judgment on the Counterclaim are filed.

Wednesday March 7, 2012
Oppositions to Motions for Summary
Judgment unrelated to the Counterclaim are filed.

Replies in Support of Motions for Summary
Monday, March 12, 2012
Judgment on the Counterclaim are filed.

Monday, March 19, 2012
Replies in Support of Motions for Summary
Judgmentunrelated to the Counterclaim are filed.

Duane Pozza
. Jenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
Tel [phone]

Fax [phone]
[e-mail]
www.jenner.com

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13