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 7

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UNITED STATESDISTRlCTCOURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMSrrURNOFF

DISNEY ENTERPRISES, INC.,
-'fWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
_COLUMBIA PICTURES INDUSTRIES, WC.,and
WARNER BROS. ENTERTAINMENT INC.,

Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.

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-- HOTFILE CORP.,

Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,

Counterdefendant.

PLAINTIFFS'TffiRD SUPPLEMENTAL RESPONSES AND OBJECTIONS TO
DEFENDANT IiOTFllE CORP.'S INTERROGATORYNO. 1
Pursuant to Federal Rule of Civil Procedure 33 and Federal Rule of Civil Procedure

26(e)(l), Plaintiffs Disney Enterprises, Inc.., Twentieth Century Fox Film Corporation, Universal
City Studios Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros.
Entertainment Inc., (collectively, "Plaintiffs"') hereby provide the following Third Supplemental

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Responses, in Part, to Interrogatory Number 1 in Defendant Hotfile Corporation's ("Defendant"
or "HotfIle") First Set ofIntenogatbries (the "First Intenogatories"):

GENERAL OBJECTIONS
1.

Plaintiffs object to the First Intenogatories to the extent that they call for the

disclosure of information subject to the attorney-client privilege, the joint defense or common
interest privilege, the work product doctrine or any other applicable privilege or doctrine. Any
inadvertent disclosure of such information shall not be deemed a waiver of the attorney-client
privilege, the joint defense or common interest privilege, the attorney work product immunity
doctrine, or any other applicable privilege or doctrine.
2.

Plaintiffs object tothe First Illtenogatories to the extent that they call for the

disclosure Df communications with, facts known by, or opinions held by non-testifying experts
retained pursuant or specially employed in anticipation of litigation or preparation of trial,
pursuant to Fed. R. Civ. P. 26(b)(4)(B). Any inadvertent disclosure of such infonnationshall not
be deemed a waiver of the protection against discovery afforded by Rule 26(b)(4)(B) or any
other applicable privilege or doctrine~
3.

Plaintiffs object to the First Interrogatories to the e:;..'tent that they call for the

disclosure of information beyond th~ requITed by the Federal Rules of Civil Procedure or the
Local Rules of the Court
4.

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

reasonably calculated to lead to the discovery of admissible evidence, and are ambiguous,
duplicative, vague, oppressive, harassing, overbroad or unduly burdensome.
5.

Plaintiffs object to the First Interrogatories to the extent that they call for

infonnation or documents created or maintained by Defendants, forinformation or documents
already in Defendants' possession, or for information readily accessible to Defendants in the
public record, on the grounds that it is unduly burdensome,oppressive, and harassing, and wouid
needlessly increase the cost of litigation.
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6.

Plailltiffsobject to the First Interrogatories to the extent that they are not limited

to time periods reasonably related to the matterS at issue in tbis litigation. SpecificaUy, Plaintiffs
object to the First Interrogatories to the extent that they seek the production by Plaintiffs of
documents or materials prepared, generated, duplicated, communicated, distributed, or
transmitted prior to Defendants' commencement of operations on Hotfile, as overbroad, unduly
burdensome, and seeking infmmation neither relevant to this action nor likely to lead to the
discovery of admissible evidence. To the extent the Plaintiffs respond to the First Requests,
Plaintiffs will produce non-privileged responsive documents created on or after January 1, 2009,
as this. date is several months prior to Defendants' commencement of operations on the Hotfile
websi.te. Plaintiffs are willing to meeta.nd confer \vith Defendarits·regardmg i'hether a search
for qocuments prior to that date may be appropriate v"ith respect to specific items orrequests.
9.

Plaintiffs objectto the First Interrogatories to the extent they seeks unavailable

infonnation or informationnot cilrrently in Plaintiffs' possession, custody or controL
10.

Plaintiffs object to the First Interrogatories to the extent that they seek proprietary

and confidential information not relevant to this proceeding, including but not limited to
infonnation related to third parties.
11.

Plaintiffs object to the First Interrogatories to the extent they seek the production

of confidential materials or materia.ls relating to the Plaintiffs' trade secrets absent the entry of
suitable protective order.
Plaintiffs incorporate these General Objections into each specific response as if fully set
forth in each response.
OBJECTIONS TO SPECIFIC DEFINITIONS

1.

Plaintiffs object to the Interrogatories' definition of "IDENTIFY" insofar as it

exceeds a responding patti's obligations under the Federal Rules of Civil ProcedUre.
2.

Plaintiffs object to the Interrogatories' ciefinitionsof"RELATE," "RELATES,"

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

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attorney work product insofar as it requites Plaintiffs tddetermine what "sbow[s]" or
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"evidenc[es]"a particular proposition.
3.

.. Plaintiffs object to the InterrogatQries' definitions of The tenns "PLAINTIFFS,"

"YOU," "YOUR" or "THE STUDIOS" insofar as they seek to require Plaintiffs to provide
interrogatory responses and infonnation for entities other than the Plaintiffs, such as their
affiliates and their law fmns in matters other than the present action. Infonnation in the
possession of third parties, such as Plaintiffs' affiliates, agents, and outside counsel other than
counsel in the present action, is irrelevant and unduly burdensome to obtain. Plaintiffs will .
respond on behalf of the Plaintiff entities.

RESPONSES AND O&JECTIONS TO SPECIFIC INTERROGATORIES
~1ERROGATORYNO.

1:

IDENTIFY all files that were or are avai1able through hotfile.com that YOU allege
infringe YOUR copyrights, including each of YOUR works that YOU allege the file infringed,
identified by name and United States copyright registration number, the URLs athotfile.com
where YOU allege that file was avallable, and the time period '\Tben YOU allege the file was
present on hotfile.com.

PLAINTIFFS' SECOND SUPPLEMENTAL RESPONSE AND OBJECfIONS TO
INTERROGATORY NO.1:
Pursuant to Fed. R. eiv. P. 26(e)(2) and the Court's September 14,2011 Order, Plaintiffs
hereby provide the f01lowing second supplemental response to Interrogatory No. 1. Other than
the objections stated in Plaintiffs' previous responses to Interrogatory No.1, which are expressly
incorporated herein, Plaintiffs' response below suppiements and supersedes Plaintiffs' previous
responses to Interrogatory No.1. Plaintiffs additionally iricorporateeach General ObJection and
Objection to Specific Definitions stated above as if set forth herein.
Plaintiffs further object because, in the brief period of time permitted by the Court and
the parties' stipulation, it is unduly burdensome and impossible as a practical matter for Plaintiffs
to identifY each infringing file em Hotfile.com for every work

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o~rned by

the Plaintiffs ·ever since

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Hotfile began operating. The datanecessary to identify suth infringing files ar;e~ aridh8.ve been,

in theposses~ibnQf Defendants; Plaintiffs only recentiy obtained accessto celtain of those data.
records pursuant to Court order, and still have not obtained access to the content files
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themselves. Given additional time, Plaintiffs would be able to identify innumerable additional
instances of Gopies of Plaintiffs' works on Hotfile.com. Further, given the opportunity to review
. the content files, Plaintiffs will be able to make a more definitive assessment of particular files
that appear to infringe Plaintiffs' copyrights, and thus expressly reserve their right to supplement
this response after Defendants have produced the content files for each file identified in Schedule
A hereto. Finally, insofar as Defendants' ovmelectronic records contain the information sought
by this Interrogatory, particuladY with respect to the dates on which each infringing file was
available on the Hotfile Website, Plaintiffs object that this Interrogatory is an impermissible
attempt to transfer to Plaintiffs the bUrden of analyzing data that Defendants can just as easily
analyze themselves.

BY EA.CH PLAINTIFF INDIVIDUALLY, IN RELEVANT PART:
Subject to and without \vaiving theforegoIDg objections, Plaintiffs state as follows:
..Pursuant to the schedule set by the Court and the parties~ stipulation, Plaintiffs have had only a .
very limited period ofume to attempt to identify instances of Plaintiffs' copyrighted works
available on Botfile.com. In addition to those identified in this response, there are innumerable
additional instances that Plaintlffs would have identified with the .benefit of additional time.
Infrim!ing copies of these same copyrighted works. as well as infringing copies of new and
additjQualPlaintiffs' works. are also being uploaded to HotfiJe com on an ongoing basis.
Moreover, Plaintiffs havdimited their response to this Interrogatory to copyrighted works the
rights to which are held by one of the nanled Plaintiff companies. There are untold numbers of
additional copyrighted motion pictures and television shows the rights to which are held by
Plaintiffs' aftiliates that are being infringed through Hotfikcom.
Schedu1e A hereto identifies, by name and Hotfile.com URL, those files on Hotfile.com
(which Plailltiffsbave been able to identify in the tUne permitted) that Plaintiffs belie·ve

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coriespondto copIes ofPlaintiffs' copyrighted movies and television shows that h:ive been
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infringedandlor arecontinuitig to be·infringed through Hotfile.com. Pursuant to Defendants'
..

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data productionHF02835588, collectively, these copyrighted works have been infringed through
Hotfile.com more than 30 million times.
Many of the files· (URLs) on Schedule A have been identified through data recently
produced by Defendants pursuant to Court order and for which Defendants have not yet
produced copies of the actual content files represented by the URLs. Plaintiffs have identified
these URLs based on the information (metadata) contained in the data produced by Defendants,
including the titles of the works and other information about the files contained in Defendants'
data. PlaintitIs have requested that Defendants produce copies of the actual content files
represented by each URL identified on Schedule A. As necessary, Plaintiffs will supplement this
Interrogatory response upon review of the content files produced by Defendants.
For each copyrighted work identified in Schedule A, Schedule B hereto identifies the
PlaintUfthat holds the rights to the work and the copyright registration number assigned to the
work by the United States Copyright Office.

With respect to the Interrogatory's request to provide "the time period when YOU allege
the file was present on hotfile.com," pursuant to Fed. R Civ. P. 33(d), Plaintiffs refer DefendantS
to information regarding the upload date and last download date of each file in Defendants' data
production HF02835588, which contains information ,regarding when each such file was
available.

PLAINTIFFS' THIRD SUPPLEMENTAL RESPONSE AND OBJECTIONS TO
INTERROGATORY NO.1:
Pursuant to Fed. R Civ. P. 26(e)(2), Plaintiffs hereby provide the folloVvwg third
supplemental response to Interrogatory No. L Plaintiffs incorporate the entirety of their Second
Sl.!-pplemerrtal Response and Objections to Interrogatory No.1, as set forth above. Plaintiffs
additionally incorporate each General Objection and Objection to Specific Definitions stated

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above as ifset forth herein. Plaintiffs' response here supplements the previous response for the
Plaintiffs Twentieth Century Fox Film Corporation ("Fox"),Universal City Studios Productions
LLLP ("Universal"), Columbia Pictures Industries, Inc. ("Columbia"), and Warner Bros.
Entertainment Inc. ("Warner Bros. "), by attaching amended versions ofSchedules A and B for
each of those Plaintiffs.

BY FOX, UNIVERSAL, COLUMBIA., AND WARNER BROS., EACH OF THOSE
PLAINTIFFS INDIVIDUALLY, IN RELEVANT PART:
Subject to and without waiving the foregoing objections, Plaintiffs state as follows:
Plaintiffs incorporate their Second SupplementalResponse to Interrogatory No.1 in its
entirety. Amended versions of Schedules A and B are attached here. Schedules A and B contain
the information specified in the Second Supplemental Response.

Dated: October 11; 2011

GRAY-ROBINSON, P.A.
Karen L. Stetson (FL Bar No. 742937)
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B.Fabrizio {Pro Hac Yice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC20001
Phone: [phone]
Fax: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA,INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
BuildingE
ShemumOaks, CA 91403

Attorneys for Plaintiffs:

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VERIFICATION OF COLUMBIA PICTURES INDUSTRIES, INC.

1, Jared Jussim, am a corporate offIcer of Plaintiff Columbia Pictures Industries, Inc_ and
am authorized to execute this verification on its behalf.

I have reviewed Lhe interrogatory responses contained in Plaintiff s Third Supplemental
Responses and Objections to Defendant HotfiJe Corp.'s Interrogatory No.1. I aminforrned -and
believe and on that basis allege that the matter started therein are true as to Plaintiff Columbia
Pictures Industries, Inc.

r declare under penaJty of perjury that the fore'going is true and correct.
Executed on October ~, 2011, at Cui V d City

Signature:

, CA

V

A--.,~.

/: .///
Name (Print): JareMussim
Title:

Executive Vice President,
Lega1 Affairs and
Assist.ant Secretary

VERIFICAnON OF TWEl\1'fIETHCENTURY FOX FILM CORPORATION
·

.

Information in Plaintlffs'Third Supplementai Responses and Objections to Defendant
Hotfile Corp. 's InterrogatoryNo.lwas provided by me and/or gathered at my direction from
corporate records and personneL I have reviewed the responses. I deClare under penalty of
perj

ury of the laws of the United States that the foregoing responses as to Plaintiff Twentieth

Century Fox Film Corporation are true and correct to the best of my knowledge and belief, based
on my review of such information.

Executed on October

1L 2011, at

{p s

k.e.d<:.r: ,CA
VSignature:
Name (print):
Title:

~ C lr!l~v

.•

Ron J £ ciAlh u./u
. bSt':Sfa.,-d- Set (.( t a..rq
.J

VERIFICATION OF UNIVERSAL CITY STUDIOS PRUQUCTIONS LLLP.

t, Gabriela Kornzweig, pursuanttoFe<i. R.eiv. P. 33(b)(l) and 2SU.S.C. § 1746 declare
.
as follows:
I am Secretary for Universal City Studios ProductIons LLLP. On behalf of Universal
CiJy Studios Productions LLLP, I have reviewed the interrogatory responses contained in
Plaintiffs' Third Supplemental Responses and Objections to Defendant HotfileCorp.'s
Interrogatory No.1. I verify that the answers of Universal City Studios Productions LLLP
contained inthe foregoing Supplemental Responses to Defendants' First Set ofInterrogatories
are true and correct to. the best of my knowledge and belief that I am authorized to so verify and
that as to matters stated therein tnat are not within my personal knowledge I have relied upon
information prepared by persons whom I believe to be reliable, based on infoffi1ation and records
maintained by Universal City Studios Productions LLLP in there gular and ordinary course of its
business.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on October

lL, 2011, at

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VERIFICATION OF WARNER BROS, ENTERTAINMEl'ff INC.
I, Amanda Hicks, declare as follows:

I am the authorized agent for Plaintiff Warner Bros. Entertainment Inc. t have read the·
. foregoing Plaintiffs' Third Supplemental Responses and Objections to Defendant Hotfile Corp. 's
Interrogatory No.1 and know its contents;

I am informed and believethat the matters stated in the foregoing document are true.
Executed onOctober 11, 2011, at Warner Bros. Studios, Burbank:, California.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

Signature;
Name:
Title:

Amanda Hicks
Manager, Television Production
. Insuranc~

·········T

UNITED STATES DISTRICT COURT
DISTRICT OF FLORIDA

SOUTHERt~

CASE NO. 11-20427-WILLIAMS/TURNOFF

DISNEYENTBRPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLillvffiIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.

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

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HOTFILE CORP.,
Counterclaimant,
v.

WARNER BROS. ENTERTAINMEhTT INC.,
Counterdefendant.

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CERTIFICATE OF SERVICE
I hereby CeMj that on this 11 th Day of October, 2011, I served the foregoing Plaintiffs'
Third Supplemental Responses and Objections to Defendant Hotfile Corp. 's First Set of
Interrogatories on all counsel of record on the attached Service List via their emailaddress(es) as .
set forth on the Court's CMlECF filing system per the paIiies'serviceagreement, as indicated on
the attached Service List.
I further certify that I ani. admitted pro hac vice in the United States District Court for the
Southern District of Florida and certify that this Certi:ficate of Service was executed on this date
at Washington, D. C.

Duane C. Pozza

CASE NO. 11-20427-'.vlLLIAMS/TURNOFF

. SERVICE LIst

Disney EnterprIses, Inc., et a1. v. Hotfile Corp. et ale
CASE NO. U-CIV-20427-WILLIAMS-TURNOFF

FARELLA BMDN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
rthm:[e-mail]
N. Andrew· Leibnitz
aleibnitzt2l{fbm.com
Deepak Gupta
dgupta(2V,fbm, com

Janel Thamkul .

itharnkul(ZV,fbm.com
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

RASCO KLOCK
Janet T. Munn
.imU11J1((Urascoklock.com.
283 Catalonia Ave" Suite 200
Coral Gables, FL33134
Phone: [phone]
Fax: [phone]

Attorney for Defendants Hotfile COlp. and
Anton Titov
Served via electronic mail by agreement

Attorneys for Defendants Hotfile COlp. and
. Anton Titov
. Served via electronic IDail by agreement
. BOSTON LAW GROUP
Valentin Gurvits
825 Beacon Street, Suite 20
Newton Center, MA 02459
Phone~ 617-928-1800
.. Fax: [phone]
vQUTvitz@.bostonlawgroup.com

. Attorney for Defendants Hotfile Corp. and
Anton Titov
Served via electronic mail by agreement

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