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

Filing 449

NOTICE by Hotfile Corp., Anton Titov Defendants' Notice of Filing the Publicly Filed Version of the Declaration of Andrew Leibnitz and Exhibits Thereto Filed In Support of Defendants' Opposition to Plaintiffs' Motion to Strike Portions of Boyle, Cromarty and Titov Declaration (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, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16)(Munn, Janet)

Exhibit 11

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Infonnation, or Objects or to Pennit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the

Northern District of California
Disney Enterprises, Inc., et al.

)

Plaintif

)

v.

)

Hotfile Corp., Anton Titov, and Does 1-10

)

Defendant

)
)

Civil Action No. 11-20427-KMW
(If the action is pending in another district, state where:

Southern District of Florida

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Google, Inc.

Legal Compliance, 1600 Amphitheatre Parkway, Mountain View, CA 94043

g Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material: See Attachment A

Date and Time:

Place: County Process Service

31 EastJulian St.

12/14/2011 5:00 pm

San Jose, CA 95112

o Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other propert possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
: Date and Time:
I Place

Fed, R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
not doing so, are
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of
attached.
The provisions of

Date: 12/06/2011

CLERK OF COURT

OR
Signature of

The name, address, e-mail, and telephone number of

Clerk or Deputy Clerk

the attorney representing (name of

party) Disney Enterprises, Inc.,

et al. , who issues or requests this subpoena, are:
Duane C. Pozza, Jenner & Block LLP, 1099 New York Avenue NW, Suite 900, Washington D.C. 20001
Phone: [phone]
Email: [e-mail]

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 11-20427-KMW
PROOF OF SERVICE

(This section should not befiled with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of

individual and title, if any)

was received by me on (date)
o I served the subpoena by delivering a copy to the named person as follows:

on (date)

; or

o I returned the subpoena unexecuted because:

the United States, or one of its offcers or agents, I have also
Unless the subpoena was issued on behalf of
tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of
$

My fees are $

I declare under penalty of

for travel and $

for services, for a total of $

perjury that this information is true,

Date:
Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

0.00

AO 888 (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of

Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)

(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or

attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction - which may include lost
earnings and reasonable attorney's fees - on a party or attorney

who fails to comply.

(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or triaL.

(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the part or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises - or to producing electronically stored

information in the form or forms requested. The objection must be
the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
served before the earlier of

or inspection.

(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a part nor a party's

offcer from significant expense resulting from compliance.
(3) Quashing or Modifing a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a part nor a party's offcer
to travel more than i 00 miles from where that person resides, is
employed, or regularly transacts business in person - except that,

subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permited. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from
the expert's study that was not requested by a party; or
(iii) a person who is neither a part nor a party's offcer to incur
substantial expense to travel more than 100 miles to attend triaL.

(C) Specifing Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person wil be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to

the categories in the demand.
(B) Formfor Producing Electronically Stored Information Not
Specifed. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of
undue
burden or cost. If
that showing is made, the court may nonetheless
order discovery from such sources if
the requesting party shows
good cause, considering the limitations of
Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
the withheld documents,
(ii) describe the nature of
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, wil enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any

party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until

the claim is resolved.

(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty's failure to obey must be excused if
the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of
Rule 45(c)(3)(A)(ii).

ATTACHMENT A
For purposes of this Schedule, the following definitions and instructions apply:
1.

The term “Hotfile Website” means the website accessible at www.hotfile.com.

2.

The term “Hotfile Party” means Hotfile Corp., Hotfile, S.A., Hotfile, Ltd., and

Anton Titov.
3.

The term “you” or “your” means Google, Inc., including any employees or

representatives of Google, as well as any of your subsidiaries or affiliates involved in the
operation of your email hosting or analytics operations.
4.

The term “document” shall have the meaning of the term “documents or

electronically stored information” in Federal Rule of Civil Procedure 34(a)(1)(A).
5.

To the extent documents are maintained in electronic formats, this subpoena calls

for production in electronic format, in their native formats as they currently exist on your storage
media and devices. However, if such native format is one that would not be reasonably usable to
persons other than you (i.e. requires the use of proprietary software or computer systems), such
data should be produced in a usable format to be discussed with Plaintiffs at a mutually
convenient time.
6.

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
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.
7.

A protective has been entered in this action. A copy of the protective order is

attached as Attachment B to the subpoena.
DOCUMENTS TO BE PRODUCED
REQUEST NO. 4:
“Referral Traffic” reports for all available dates, showing the sources of all traffic to the
Hotfile Website that you have collected, prepared, displayed, or otherwise made available
through the Google Analytics service regarding the Hotfile Website.

2

ATTACHMENT B

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 1 of 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. I: 1 1-cv-20427-JORDAN

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,

Plaintif,
vs.

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

STIPULATED PROTECTIVE ORDER
WHEREAS the parties believe that entry of a protective order pursuant to Rule
26(c) of

the Federal Rules of

Civil Procedure is necessary to protect such trade secrets

and other confidential research, development, technical, or commercial information that
may be produced or provided by the parties or non-parties, and the parties have stipulated
to the following proposed protective order;
WHEREAS the Court finds that good cause exists for the entry of

Order in this action pursuant to Rule 26(c) of

the Federal Rules of

this Protective
Civil Procedure in

order to protect such trade secrets and other confidential research, development, or
commercial information;

Good cause appearing, and in conformance with the parties' agreement, IT is
HEREBY ORDERED that this Protective Order pursuant to Rule 26(c) of

Rules of

Civil Procedure be, and is hereby, entered.

the Federal

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 2 of 23

I. This Protective Order shall be applicable to and govern all depositions,

documents produced in response to requests for production of documents, answers to
interrogatories, responses to requests for admission, and all other discovery taken
pursuant to the Federal Rules of

Civil Procedure, as well as other information hereafter

furnished, directly or indirectly, by or on behalf of any party or non-part in connection

with this action (collectively, "Discovery Materials"). Discovery Materials that are
designated Confidential or Highly Confidential as provided herein shall be used by any

authorized recipients solely for the purposes of conducting this litigation and not for any

other purpose whatsoever, and such information shall not be disclosed to anyone except
as provided herein. i
2. A producing part,2 or a part who is the original source of document or

information produced, may designate as Confidential any Discovery Materials produced

or otherwise furnished in discovery in this case that that the part believes in good faith
to contain trade secret or other confidential strategic, research, development, or
commercial information, that is not generally known and that the party would normally
not reveal to third parties or would cause third parties to maintain in confidence,
including without limitation financial data, contracts and agreements, business and
strategic plans, and marketing documents.
3. Discovery Materials designated as Confidential under this Protective

Order, or copies or extracts therefrom and compilations thereof, may be disclosed,

i This Protective Order does not apply to hearings or trial before the Court. The parties,
any party in interest, and/or the witnesses, can move the Court to seal any court

lroceeding for reasons consistent with a part to this case, or to a non-part person or
The term "producing part" refers to this Protective Order.
entity, that produces Discovery Materials in this case.
2

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 3 of 23

described, characterized, or otherwise communicated or made available in whole or in
part only to the following persons:
(a) the Court and its employees, personnel, or other agents;

(b) outside counsel of record in this case (including in-house counsel

for the Motion Picture Association of America, Inc. who have appeared as outside
counsel of

record for plaintiffs), and associated attorneys, staff and supporting personnel

of such attorneys, such as paralegals, secretaries, litigation assistants, clerical employees
and contractors, technical staff, and copying and electronic discovery vendors who are
working at the direction of attorneys with respect to this litigation;
(c) any certified shorthand or court reporters retained to report a

deponent's testimony taken in this case;
(d) experts or consultants retained by counsel in connection with this

litigation, who are not employed by any part, and any clerical, administrative or support
staff (including staff such as research assistants, analysts, and technical staft) for such
experts or consultants, provided that the procedures set forth in paragraphs 9 and i 0 this

Order have been followed;
(e) deposition or trial witnesses who are employed by the part that

produced the Discovery Materials, or who lawfully and apart from this action received or
authored the information or material to be shown to such witnesses (whether during
examination or preparation);
(t) any person whom the parties agree, in advance and in writing, may

receive such protected information, provided such person has executed the Notification of
Protective Order attached hereto as Exhibit A; and
3

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 4 of 23

(g) any individual who is a part or employee of any corporate part

this litigation, for use only

or one of its affliates, as reasonably necessary for purposes of

in connection with this litigation, but limited to no more than five (5) such individuals per

whom the procedures set

corporate part (including affliates), with respect to each of

forth in paragraphs 9 and i 0 this Order have been followed. A party's request to disclose
Confidential information to more than five such individuals, if reasonably necessary for
the purposes of

the litigation, shall not be unreasonably refused.

4. Documents or other material that a non-party designates as Confidential

shall be restricted to the persons listed in iiii 3(a) - (e) and ii 3(g). Such material may also
be shared with any person whom the producing non-party agrees in advance and in
writing may receive such materiaL.

5. Any Discovery Materials produced or otherwise furnished in discovery in
this case that meet the requirements for designation of Confidential material under

paragraph 2, and that the producing part reasonably believes is so highly competitively
sensitive that it is entitled to extraordinary protections, may be designated Highly
ConfidentiaL. Such material may be designated Highly Confidential by the producing
part or a party who is the original source of

the document or information.

6. Discovery Materials designated as Highly Confidential under this

Protective Order, or copies or extracts therefrom and compilations thereof, may be
disclosed only to the persons set forth in iiii 3(a) - (f), supra. Outside counsel of

record

may also furnish, to in-house counsel identified in ii 3(g), summaries and draft briefs and

other pleadings describing such Highly Confidential material at a high level without
revealing specific highly competitively sensitive information (e.g., specific contract
4

Case 1 :11-cv-20427-AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 5 of 23

terms, financial information, business plans, technical specifications). Additionally,
Highly Confidential material may also be shared with any person whom the producing
non-part agrees in advance and in writing may receive such protected information.

7. The designation of

this Protective

Discovery Materials for purposes of

Order shall be made in the following manner by the part or non-part seeking

protection:
(a) In the case of documents, exhibits, briefs, memoranda,

interrogatory responses, responses to requests for admission, or other material (apart from

depositions or other pretrial testimony): by affxing a plainly visible confidentiality
designation legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," as

appropriate): (i) on each page of any document containing any confidential information
or material, or, in the case of

pleadings fied with the Court, on the cover page of

the

pleading; or (ii) physically on the outside of any media for storing electronic documents
(e.g., CD-ROM, DVD-ROM, hard disk drive, flash drive, or other medium), at the time

such documents are produced or such information is disclosed, or as soon thereafter as
the confidential nature of

the part or non-part seeking protection becomes aware of

the

information or material disclosed and sought to be protected hereunder. The term
"document," as used in this Protective Order, shall have the broadest meaning
permissible under the Federal Rules of

Civil Procedure and shall include, without

limitation, all "writings," "recordings" and "photographs" as defined in Rule 100 I of the
Federal Rules of

Evidence, and any information stored in or through any computer

system or other electronic or optical data storage device.

5

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(b) In the case of depositions or other pretrial testimony: (i) by a

statement on the record by counsel, acting in good faith, during such deposition or other
pretrial proceeding, that the transcript or portions thereof shall be designated either

"Confidential" or "Highly Confidential" hereunder; or (ii) by written notice of such
designation sent by counsel to all parties within ten (10) days after the e-mailing or
the transcript of

otherwise transmitting to counsel of

the deposition. The parties wil

endeavor to have all completed transcripts sent via e-mail, as well as next business day
delivery.

(c) Whether or not so designated on the record at deposition or other
pretrial proceeding, the parties shall treat all deposition and other pretrial testimony as

"Confidential" under this Protective Order until the expiration often (10) days after the ethe transcript of

mailing or otherwise transmitting to counsel of

the deposition. Unless

specific designations of portions of a transcript have been made on the record during the
proceeding, or in writing within ten (i 0) days after the e-mailing or otherwise
the transcript of

transmitting to counsel of

after the expiration of

the deposition, any confidentiality is waived

the 10-day period unless otherwise stipulated or ordered. The

parties may modify this procedure for any particular deposition or proceeding through

agreement on the record at such deposition or proceeding or otherwise by written
stipulation, without approval of

the Court.

(d) A part or non-party furnishing documents and things to another

party shall have the option to require that all or batches of documents and things be
treated as confidential during inspection and to make its designations of

6

particular

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 7 of 23

documents and things at the time copies of documents and things are produced or
furnished.

8. The parties retain the right to apply to the Court for an order restricting

certain individuals, other than experts or consultants, from access to certain Discovery

Materials. Any counsel for a party wishing to restrict access to information in this
manner shall produce the Discovery Materials with a request that the information not be
the

disseminated to the individual(s) to whom the part objects pending further order of

Court. Alternatively, in the event that the objecting part learns of

the individual or the

basis for objection subsequent to producing the Discovery Materials, counsel for such
part wil request that the individual(s) to whom the part objects be restricted from
the Court. If

further access to such information pending further order of

the receiving

party disagrees with the restriction, the part wishing to restrict access shall, thereafter,
within five court days, move the court for a protective order restricting dissemination to

the person to whom the moving part objects to seeing the information. The receiving
part wil in good faith comply with any request under this paragraph to restrict access
for five court days following such request and, in the event the objecting party moves for

a protective order, pending further order from the Court. A part seeking to restrict
disclosure of materials to an expert of consultant must follow the provisions of paragraph
9.
9. (a) For the purposes of

this Protective Order, a consultant or expert

shall be restricted to a person who is retained or employed as a bona fide consultant or
expert for purposes of

this litigation, whether full or part time, by or at the direction of

counsel of record for a party. The name, business address, curriculum vitae ("CV") and
7

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affliation of each such consultant or expert must be disclosed to the producing part at
material designated under this

least five (5) court days prior to such person's review of

Order. The CV shall contain a list of all present employers/clients as well as all past
employers/clients for the 36 months preceding the date of employment in this case.
(b) Additionally, any part seeking to disclose Discovery Materials to

any individual under paragraph 3(g) must disclose the name, affiiation, and job
description of

the individuaL. In-house counsel identified under paragraph 3(g) need

only, for purposes of disclosing their "job description," identify that they are employed as
in-house counsel for a part.

(c) During the five-court day period following disclosure under

paragraphs 9(a), counsel for the opposing party shall have the opportunity to oppose the

proposed disclosure to any individuaL. Any part opposing such disclosure shall within
such five-court day period provide the other party via electronic mail with a written

objection, setting forth in reasonable detail the specific grounds for such opposition. The
part seeking to disclose shall respond by electronic mail, and the parties wil endeavor to

meet and confer as soon as reasonably practicable regarding the dispute but not later than

the parties cannot agree on

three (3) court days after the e-mail response is sent. If

disclosure, the objecting part shall, within five (5) court days after the e-mail response is
sent, file a motion for appropriate relief, or, if a discovery calendar is available, contact
the Court and place the matter on the next available discovery calendar following the

conference, otherwise the objection is deemed withdrawn. In the event a part objects to
disclosure and fies a motion or contacts the Court and such resolution by the Court is

8

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necessary, no additional confidential material shall be disclosed to that individual
the issue by the Court.

pending resolution of

(d) If no written objection is received by 5:00 p.m., Eastern time, on

the fifth court day following the date of disclosure under paragraph 9(a), then the part

seeking to disclose may do so. Failure to object shall constitute waiver of any objection
under this paragraph, subject to the following exception. After the five-court day period

has expired without objection, a part may move the Court to allow it to object to a
consultant or expert if it can show: (a) there is new, material information relating to the

consultant or expert that was not available to the moving part within the five-court day
the information at the time,

objection period; and (b) had the moving party been aware of

the moving party would have objected to the consultant or expert. In such a case, the

objecting part shall, within ten (10) court days of coming into possession of such new,

material information relating to the consultant, or expert, send to the other part by
electronic mail its written objection, setting forth in reasonable detail in its position
regarding: (a) the specific grounds for such opposition, (b) the material information

relating to the consultant or expert that was not available to the moving part within the
five-court day objection period, and (c) the moving party's support for its contention that
had it been aware of

the information during the five-court day objection period, it would

have objected to the consultant or expert. Within five (5) court days of receipt of such
objection, the part seeking to disclose shall send its response by electronic mail, and the

parties shall endeavor to meet and confer as soon as reasonably practicable regarding the
dispute but not later than four (4) court days after the e-mail response is sent. If

the

parties cannot agree on disclosure at the conference, the objecting party shall fie a

9

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motion for appropriate relief, or, if a discovery calendar is available, contact the Court

and place the matter on the next available discovery calendar following the conference or
the objection will be deemed withdrawn.

10. Any person set forth in Paragraph 3 who is not (i) a party to this litigation,
the MPAA who have appeared as

record (including in-house counsel of

counsel of

outside counsel of record for plaintiffs), or associated attorneys, staff and supporting
personnel of such counsel of record; or (ii) the Court or Court personnel to whom
material designated under this Protective Order is to be disclosed, shall, prior to receiving
this Protective Order, and a copy of

such material, be furnished with a copy of

Notification of

the

Protective Order (attached as Exhibit A). The person shall not be

authorized to access protected materials until the person reads, and has signed, the
Notification of

Protective Order. Counsel for the part seeking to disclose material

designated under this Protective Order to any such person pursuant to this paragraph shall

all such Notifications until sixty

be responsible for retaining the executed originals of

(60) days after the termination of

this litigation. Copies of any such Notification shall be

retained and provided to counsel for the other parties or affected non-parties upon
request.
this Protective Order by

i 1. Any third party may obtain protection of

complying with Paragraphs 2 through 7 of

this Protective Order regarding designating

materials as Confidential or Highly ConfidentiaL. A part making a discovery request to
a non-party in this action shall notify the third part that the protections of

Order are available to such third part.

10

the Protective

Case 1 :11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 11 of 23

12. While the parties disagree regarding whether source code wil be produced

in this case or whether source code is necessarily entitled to greater protection than

Highly Confidential material, to the extent production of source code is made, it will be

produced and managed in the following manner. Any documents, things or information
produced or otherwise furnished by any of

the parties in discovery that are designated

"Confidential" or "Highly Confidential" and contain a party's source code may be
designated "RESTRICTED CONFIDENTIAL-SOURCE CODE" (a "Source Code
Document").

(a) Source Code Documents wil be produced to designated outside counsel for the
requesting part ("Source Code Custodian") on a portable hard disk drive

("HDD"). Any supplemental production ofa Source Code Document shall be
made consistent with the means for production provided herein, or by a means
the producing part. No part can

agreed to by the parties, at the option of

request that more than three (3) duplicate HODs be produced to the Source Code
Custodian.

(b) At the producing party's option, the HOD may be encrypted prior to production,
using TrueCrypt or other commonly used encryption softare for whole drive

encryption. Information necessary to gain access to an encrypted HOD shall be
provided by counsel for the producing party to the Source Code Custodian by
the producing part;

reasonable means meeting the security interests of

(c) Access to information designated RESTRICTED CONFIDENTIAL-SOURCE
CODE shall be limited to Source Code Custodians and experts retained or used by

counsel of record for any part to assist such counsel with respect to this
11

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litigation, provided such experts are disclosed pursuant to the procedures in
paragraphs 9 and 10.

(d) Source Code Documents shall be viewed only on computers located at the
following locations: (i) within secure, locked areas within the confines of a United

States offce ofthe individuals identified in Paragraph 12(c); (ii) the sites where
any depositions relating to the source code are taken for the dates associated with
the taking of

the deposition; (iii) the Court; or (iv) any intermediate location

where an individual identified in Paragraph 12(c) transports the HDD (e.g., a
hotel prior to a deposition), provided that the Source Code Custodian and expert
take all necessary precautions to protect the confidentiality of

the HDD or other

materials containing Source Code while the materials are in such intermediate

locations. HDDs will be disconnected from a computer and stored securely when
not in use.

(e) The Source Code Custodian shall maintain a Source Code Log containing the
the date that a paper copy was made of any

following information: (I) a record of

portion of source code; (2) the identity of each person granted access to the source
code in either paper or electronic form; and (3) each date when electronic access
was granted. For purposes of

portion of

source code of

part (i) of

the preceding sentence, the specific

which a paper copy was made need not be logged, but

any such paper copy wil be retained by the Source Code Custodian. Defendants
wil not request the log without a reasonable and good faith basis for believing its
production is relevant to suspected security breaches regarding source code. The
parties do not necessarily agree that the log should be produced, and should
12

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 13 of 23

defendants make such a request for production, the parties wil meet and confer
regarding such request and bring it to the Court's attention as appropriate.
(f) Electronic copies of

confines of

Source Code Documents shall only be made within the

the HOD. However a Source Code Custodian or expert may include

excerpts of source code of length no more than necessary for purposes of the
litigation in a pleading, exhibit, expert report, discovery document, email
communication, memorandum, deposition transcript, other Court document, or
any drafts of

these documents ("Restricted Confidential Documents"). Source

Code Custodians and the persons described in paragraphs 3(a)-(d), shall be

permitted to store and access Restricted Confidential Documents on a computer
and on a computer network that limits access to only necessary viewers; Source
Code Custodians and the persons described in paragraph 3(a)-(d), may also send
Restricted Confidential Documents to authorized persons via electronic maiL. An

individual described in paragraph 3(e) may be shown any excerpts of source code
only to the extent that that individual lawfully and apart from this action received

or authored the source code. Nothing in the foregoing shall prevent Source Code
Custodians or experts from describing the functionality of

the source code at a

high level, or referring to variable, function or fie names, to in-house counsel of
the parties, or in publicly fied pleadings or expert reports.
(g) To the extent portions of source code are quoted in a Restricted Confidential

Document, those pages or exhibits containing quoted Source Code wil be
separately bound, stamped and treated as RESTRICTED CONFIDENTIAL-

SOURCE CODE. When any Restricted Confidential Document is fied with the
13

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 14 of 23

Court, the separately bound portion stamped and treated as RESTRICTED

CONFIDENTIAL-SOURCE CODE shall be fied under seaL. When hard copies
the Source
of

any Restricted Confidential Document are retained in the offces of

Code Custodian, the Source Code Custodian shall keep the separately bound

portions stamped and treated as RESTRICTED CONFIDENTIAL-SOURCE
CODE in a secure, locked area of

the offce of

the Source Code Custodian or

destroy them in a manner that ensures they cannot be salvaged, such as crossshred shredding or incineration;

(h) Each Restricted Confidential Document or draft thereof containing Source Code
stored on a computer or computer network shall be individually passwordprotected so as to limit access to unauthorized persons;
the portions of

Restricted Confidential

(i) Any and all printouts or photocopies of

Documents that contain source code shall be marked "RESTRICTED

CONFIDENTIAL-SOURCE CODE." Should such printouts or photocopies be
transferred back to electronic media, such media shall continue to be labeled

"RESTRICTED CONFIDENTIAL-SOURCE CODE" and shall continue to be
treated as such.

G) I f the Source Code Custod ian or a party's expert, described in paragraph 12( c),

makes printouts or photocopies of portions of Source Code, the Source Code
Custodian shall keep the printouts or photocopies in a secured locked area of

offce of

the

the Source Code Custodian or destroy them in a manner that ensures

they cannot be salvaged, such as cross-shred shredding or incineration.

14

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13. The parties wil meet and confer as to the scope of

redactions of

personally identifying information, including user identifying information, in response to

particular discovery requests. Parties may presumptively redact credit card numbers,
social security numbers, and bank account numbers. The parties reserve the right to seek

to have redacted information produced in unredacted form at a later time. For database
records that are produced and redacted, without conceding that any particular redactions

are or are not appropriate, any redactions should be done in a way that preserves the
ability to identify the geographic location of

the user (such as by providing city and state

information or suffcient unredacted IP address information), and that allows for a unique
individual user's activities to be identified even when examining different sets of data
(such as by providing a unique user number).
14. Nothing in this Protective Order shall preclude any part to this litigation

or its counsel from: (a) showing a document designated under this Protective Order to an

individual who either prepared or reviewed the document prior to the fiing ofthis action
the Protective Order; or (b)

under circumstances that do not constitute a violation of

disclosing or using, in any manner or for any purpose, any information or documents

has designated under this Protective

from the party's own fies which the part itself

Order.

15. Nothing contained in this Protective Order shall affect the right of any
part to make any objection, claim any privilege, or otherwise contest any request for

production of documents, interrogatory, request for admission, subpoena, or question at a

deposition or to seek further relief or protective order from the Court as permitted by the

15

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Federal Rules of

Civil Procedure. Nothing in this Protective Order shall constitute an

admission or waiver of any claim or defense by any party.
16. In the event that any Discovery Materials designated under this Protective

Order is used, described, characterized, excerpted or referenced in, or attached to, any

Court proceeding or submission in connection with this litigation: (i) it shall not lose its
confidential status through such use; (ii) the parties shall take all steps reasonably

required to protect its confidentiality during such proceeding; and (iii) the filing part
shall seek to fie such material under seal pursuant to Local Rule 5.4, except that upon the

default ofthe fiing party to so request, any part may do so. Envelopes used to seal such
material shall carry the notation: "SUBJECT TO PROTECTIVE ORDER - PILED
the Court for fiing material
UNDER SEAL" and shall comply with all requirements of

under seaL. Envelopes so marked shall be delivered sealed to the Clerk of

the Court and

the contents thereof shall not be made available for public inspection. Counsel for the
designating part shall have the opportunity to oppose any request for public inspection.

If a pleading contains information designated Confidential or Highly Confidential by

another party, the designating part wil be deemed to have consented to a motion to fie
the pleading under seaL. Where possible, only confidential portions of

fiings with the

Court shall be fied under seaL. The parties shall cooperate in good faith in an effort to
materials fied with the Court can be

ascertin whether the confidentiality designations of

waived. As soon as practicable after fiing material under seal, but in no event later than

ten (i 0) court days, the filing party shall fie with the Court, for its public fie, a copy of
the fied materials with the material designated under this Protective Order redacted.

16

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Discovery
17. A party shall not be obligated to challenge the propriety of

Materials designated under this Protective Order at the time the designation is made, and

failure to do so shall not preclude a subsequent challenge thereto. In the event that any
part to this litigation disagrees at any state of

these proceedings with such designation,

such party shall provide to the designating person or entity a notification by electronic

mail, detailing its objection to the designation. The designating person or entity shall

respond by electronic mail, within three (3) court days, and the parties wil meet and
confer regarding the dispute no later than four (4) court days after the e-mail response is
sent. If

the parties cannot agree on disclosure at the conference, the objecting party shall

fie a motion for appropriate relief, or, if a discovery calendar is available, contact the
Court and place the matter on the next available discovery calendar following the

conference, otherwise the objection is deemed withdrawn. The burden of proving that
information has been properly designated under this Protective Order is on the person or
entity making such designation.
18. If a party inadvertently fails to designate Discovery Materials, it shall not

be deemed a waiver in whole or in part of a party's claim of confidentiality, either as to
the specific information disclosed or as to any other information relating thereto or on the
same or related subject matter. As soon as the receiving party is notified in writing of

the

inadvertent production, the information must be treated as if it had been timely

designated under this Protective Order, and the receiving part must endeavor in good
faith to obtain all copies of

the document which it distributed or disclosed to persons not

authorized to access such information by Paragraph 4 and 6 above, as well as any copies
made by such persons.
17

Case 1 :11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 18 of 23

19. Nothing in this Protective Order shall prevent disclosure beyond the terms
of

this Protective Order if

the party designating material consents in writing to such

disclosure, or if a court orders such disclosure. A part requested to disclose material
designated under this Protective Order to a non-part pursuant to a validly served
subpoena, civil investigative demand, discovery procedure permitted under the Federal

Civil Procedure, or other formal discovery request shall object to its production

Rules of

to the extent permitted by applicable law and notify the requesting non-party of

existence of

the

this Protective Order and that the material requested by the non-part has

been designated under this Protective Order, and shall further give notice of such request,
by electronic mail, and by next business day delivery, upon the part that designated the

material as soon as is reasonably possible, but in all instances no later than three (3) days
prior to the date on which such confidential material is to be produced to the non-part.
20. Inadvertent production of any document produced in response to
discovery requests in this action by any part or non-part, that a party or non-part later

claims should have been withheld on grounds of a privilege, including the attorney-client

privilege or work product doctrine (referred to hereinafter as an "Inadvertently Produced

Privileged Document") wil not be deemed to waive any privilege or work product

protection. A party or non-part may request the return of any document that it
inadvertently produced by identifying the Inadvertently Produced Privileged Document

and stating the basis for withholding such document from production. If a party or non-

part requests the return, pursuant to this paragraph, of such an Inadvertently Produced
Privileged Document then in the custody of one or more parties, the possessing parties
shall within five (5) court days destroy or return to the requesting party or non-party the
18

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 19 of 23

Inadvertently Produced Privileged Document and all copies thereof and shall make
reasonable efforts to expunge from any other document or material information solely
derived from the Inadvertently Produced Privileged Document, consistent with Fed. R.

Civ. P. 26(b)(5)(B). However, the possessing parties may retain information suffcient to
identify the Inadvertently Produced Privileged Document (e.g., bates number, author(s),
the document. A
recipient(s), date) for purposes ofa motion to compel production of

the document, and may
part may move the Court for an order compellng production of

receiving a
present the document to the Court under seal within five (5) court days of

request to return the document, but said party may not assert as a ground for the entering
of such an order the fact or circumstances of

the inadvertent production. Nothing in this
the allegedly

Order, shall preclude a party from arguing that the production of

inadvertently produced document was not inadvertent or that conduct since production of
the allegedly inadvertently produced document constitutes a waiver.
2 I . Entering into, agreeing to, and/or producing or receiving information or

material designated under this Protective Order, or otherwise complying with the terms of
this Protective Order shall not:
(a) operate as an admission by any part that any particular

information or material designated under this Protective Order contains or reflects trade

secrets, proprietary or commercially sensitive information, or any other type of
confidential information;
(b) operate as an admission by any part that the restrictions and

procedures set forth herein constitute or do not constitute adequate protection for any
particular information designated under this Protective Order;
19

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 20 of 23

( c) prejudice in any way the rights of any part to object to the

production of documents they consider not subject to discovery;
(d) prejudice in any way the rights of any part to petition the Court

for a further protective order relating to any purportedly confidential infonnation;
(e) prevent the parties to this Protective Order from agreeing in

writing or on the record during a deposition or hearing in this action to alter or waive the
provisions or protections provided for herein with respect to any particular information or
the part disclosing such information.

material with written or on the record consent of

22. This Protective Order shall not be construed to apply to any information

that: (a) is available to the public other than through a breach of

this Protective Order or

other duty of confidentiality; (b) a receiving party can demonstrate was already known to

the party at the time of disclosure and was not subject to conditions of confidentiality; or

(c) a receiving part can demonstrate was developed by that part independently of any
disclosure by a designating part or non-part.

23. In the event that information in the possession or control of a person or

entity involves the confidentiality rights ofa non-party or its disclosure would violate a
the

protective order issued in another action, the part with possession or control of

the non-party to disclose the

information wil promptly attempt to obtain the consent of

information under this Protective Order. If

the consent of

the non-part is refused or

otherwise cannot be obtained, the party wil promptly thereafter notify the party seeking
discovery of: (a) the existence and description (to the extent disclosable) of

information without producing such information and; (b) the identity of

the identity of
(provided, however, that such disclosure of

20

the

the non-part
the non-part does not violate

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 21 of 23

any confidentiality obligations). The party seeking discovery may then make further

application to the non-part or seek an order compellng discovery.
litigation between the
24. Within sixty (60) days after the final termination of

parties, all material designated under this Protective Order and all copies thereof
(including summaries and excerpts) shall be either returned to the party that produced it

or destroyed and a certification of destruction supplied to the producing part; provided,
however, that for each party, counsel who is entitled access to such designated material

under Paragraph 3 may retain complete and unredacted copies of its work product that

contains designated material as well as pleadings and papers fied with the Court or
served on the other part. Reference to designated materials (including such materials in

work product or pleadings) shall be made solely in the event of, and only in the event of,

further proceedings or litigation between the parties, a dispute over such counsel's
material designated under this

performance or a dispute over the use or dissemination of

Protective Order. Such retained copies of

pleadings and papers shall be maintained in a

fie accessible only by properly authorized counsel under the provisions of, and bound
this
by, this Protective Order. This Protective Order shall survive the final termination of

litigation with respect to any such retained confidential materiaL. The Court is

specifically exempted from any return, destruction, or other requirements contemplated
by this provision.
25. All counsel for the parties who have access to information or material

designated under this Protective Order acknowledge they are bound by this Protective
Order and submit to the jurisdiction of

the Court for purposes of enforcing this Protective

Order.
21

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 22 of 23

SO STIPULATED:
Dated: May 12, 20 I I

/s/

By:

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
Phone: [phone]
Fax: [phone]

Dated: May 12,2011

GRAY-ROBINSON, P.A.
Karen L. Stetson, Fla. Bar No.
742937
1221 Brickell A venue
Suite 1600
Miami, FL 33131

Phone: [phone]
Fax: [phone]
Attorneysfor Plaintifs

By:

/s/

Janet T. Munn, Fla. Bar No. 501281
KLOCK
RASCO
283 Catalonia A venue, Suite 200

Coral Gables, Fl 33134
Telephone: [phone]

Telecopy: 305.476.7102
Roderick M. Thompson (admitted pro hac
vice)
Andrew Leibnitz (admitted

pro hac vice)

Deepak Gupta (admitted pro hac vice)
Janel Thamkul (admitted pro hac vice)
FARELLA BRAUN + MARTEL LLP
235 Montgomery S1.
San Francisco, CA 94104
Telephone: [phone]

Telecopy: 415.954.4480
Attorneys for Defendants

22

Case 1: 11-cv-20427 -AJ Document 68 Entered on FLSD Docket 05/19/2011 Page 23 of 23

IT is SO ORDERED.

ahL~

Dated: ç# l~, 2011

UNITED ST A TESšTcT JUDGE

23