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 4
From:
Sent:
To:
Cc:
Subject:
RThompson@fbm.com
Saturday, December 03, 2011 10:03 AM
SFabrizio@jenner.com
TSchoenberg@fbm.com; ALeibnitz@fbm.com; JYeh@jenner.com; LPlatzer@jenner.com
RE: Hotfile - Bulgaria
Steve, I’m just back to my hotel (and internet access.)
We will agree that Mr. Titov’s testimony can be “commingled” and that he will be deposed in
all three of his capacities simultaneously, with the expectation that this will significantly
shorten the overall length of the deposition and avoid the risk that you would ask questions
about the same subject more than once. I also believe that with commingling there will be no
reasonable justification to go more than three days in total, and I understand that you will
strive for that result (without committing to it).
Given the foregoing, there is no reason to debate about Hotfile’s ability to proceed with the
depositions on the dates you noticed and relied on in arguing (successfully) to get four days. If
you had noticed the Rule 30b6 first, and deposed Mr. Titov as the designee, you would have
been entitled to ask all of your questions—individual and corporate—thereby eliminating the
premise for your “one more day argument.” For the record you never suggesting flipping the
order until after the Court ruled, you can be sure I would have told the Court about it if you
had. But again the issue is moot.
With respect to the Rule 30b6 notices, Mr. Titov will be the Hotfile Corp. designee on all
topics. To assist in your preparation (and efficient examination), please be aware, however,
that Mr. Titov has and will consult on the following topics of the 50 Rule 30b6 with
(19, 22, 28, 41, 43, 44 and 45) and
(12, 24, 34, 43 and 45) who have better
knowledge than Mr. Titov on some aspects of the subjects listed. These designations are
subject to our objections, served yesterday.
Safe Travels.
Rod
From: Fabrizio, Steven B [mailto:SFabrizio@jenner.com]
Sent: Saturday, December 03, 2011 7:07 AM
To: Thompson, Rod (27) x4445
Cc: Schoenberg, Tony (28) x4963; Leibnitz, Andrew (21) x4932; Yeh, Jennifer V.
Subject: RE: Hotfile - Bulgaria
Rod – Can we please have your answer on comingling and, barring comingling, the ordering of
the depositions. We need to get on flights soon.
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On the ordering, I cannot think of any reason (other than deliberate obstruction) to refuse the
ordering that we have proposed. Throughout this case, the dates in depo notices have been
considered placeholders, not written in stone dates. I also have been telling you, even before
the hearing with the Court, that I wanted to conduct Mr. Titov’s individual deposition last. You
never even suggested any opposition. How can you wait until it is too late to get a ruling from
the Court to now announce that defendants will not accommodate the ordering we’ve
requested.
Having gone through my preliminary preparation, it is clear that much of what I need to ask
Mr. Titov uses as a foundation the examination of Hotfile. It makes no sense to start with Mr.
Titov. It will be highly wasteful of time. And it all but guarantees that we will need more than
one day to complete Mr. Titov – because of the foundational questioning – additional time we
would not otherwise need.
Please let us know asap. Thanks.
SBF
From: RThompson@fbm.com [mailto:RThompson@fbm.com]
Sent: Friday, December 02, 2011 4:45 PM
To: Fabrizio, Steven B
Cc: TSchoenberg@fbm.com; ALeibnitz@fbm.com; Yeh, Jennifer V.
Subject: RE: Hotfile - Bulgaria
Steve, the weather in Sofia is not bad—high in the low 50s and probably in the 20s right
now (11:45 p.m.) First, I did get your email (and read it just now).
Second, while it is fine to send us potential exhibits in advance, especially HF produced
documents that you have truncated, that was not our offer. We proposed, and Judge
Turnoff encouraged you, to provide translations of documents in advance. That is
where the real time saving can be achieved. And if you do show Mr. Titov (or the other
Hotfile Witnesses) a translation of an HF produced document, please be sure to have
the HF produced document with the translation for the witnesses reference.
Third, we are still considering your “commingling” proposal. Even without your
cooperation on translations it may still make sense. Can you agree—as I requested—to
make every effort to finish in three days (and that you will plan to finish absent
surprises) if we agree to commingling? Also, as to the alternative choice, we would
proceed on four days per the deposition notices. Plaintiffs noticed (and the judge
allowed) four days in the following order Titov individual (12/5), Warner counterclaim
(12/6) and Rule 30b6 (12/7Ͳ8). I will be meeting with my client tomorrow so please let
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me have your latest proposal. I plan to let you know by the end of the day on our
decision on commingling as well as what Rule 30b6 topics (if any) will be handled by
witnesses other than Titov.
Fourth, no, we do not have an agreement on authentication. Literally millions of
documents were produced by Hotfile, many emails written by others and some
deliberately purporting to be something they were not (e.g. a bona fide DMCA notice).
So we cannot have a blanket stipulation. On the other hand, I suspect that there will
not be an authentication dispute about the documents you care about. Give us the
documents (or a list) and we can see.
Need to catch up on my sleep (and excuse the typos.)
Rod
P.S. Thanks for copying Tony and Andy. My response time will be slower in the days
ahead.
From: Fabrizio, Steven B [mailto:SFabrizio@jenner.com]
Sent: Friday, December 02, 2011 11:55 AM
To: Thompson, Rod (27) x4445
Cc: Schoenberg, Tony (28) x4963; Leibnitz, Andrew (21) x4932; Yeh, Jennifer V.
Subject: RE: Hotfile - Bulgaria
Rod – How’s the weather in Sofia?
We decided to take you up on your offer to send at least the attached document. It is a
document regarding users terminated by Hotfile. This is only an excerpt (it starts at the
beginning, but ends with the filing of the complaint, before the mass terminations, so
the full document would go on for many more pages). We want to confirm with Hotfile
that the users/entries we’ve highlighted in yellow represent the only users Hotfile
terminated, from inception of Hotfile through the filing of the complaint in this action,
for reasons related to copyright infringement. If Mr. Titov could review the document in
advance, that would help save time at the deposition.
If and as we come across other documents where we believe sending them to you in
advance will materially expedited the deposition, without unduly encroaching on work
product, we will forward them. I’d appreciate your replying to let me know you got this.
Additionally, please let me know today whether Hotfile plans to comingle the Hotfile
and Titov depositions. Having gone through some preparation, I can tell you that I
believe that will save time and, while we cannot agree to a hard deadline shorter than
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the four days ordered, I believe there is a reasonable likelihood that doing so would
enable us to finish in less than four days (whether that is 3.5 days or 3 days I could not
say). But if we are going to realize the time savings I need to know in the next few hours
so that I can effectively merge outlines.
As to your other questions, the translator is certified to translate both Russian and
Bulgarian, and the court reporter will have real time hook ups.
Regarding the below discussion, can we consider that with this exchange of emails we
have a stipulation that the documents produced by each party are authentic and neither
side will challenge the authenticity of documents it has produced in this action? Please
confirm.
As to the business records issues, I don’t see how either side could fairly argue that the
datasets it produced, including the database of Hotfile’s communications with users, do
not constitute “[r]ecords of regularly conducted activity” under FRE 803(6), which, in
relevant part, is defined as “[a] report, record, or data compilation, in any form, of acts
[or] events …, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the … report, record
or data compilation … unless the source of the information or the method or
circumstances of preparation indicate a lack of trustworthiness.”
As I said, this stipulation is intended to be mutual and both sides produced datasets that
are fairly characterized as “[r]ecords of regularly conducted activity.” So please give this
additional thought. No one wants to take up deposition time with evidentiary
formalities where a reasonable stipulation could have avoided the need for documentͲ
byͲdocument testimony.
Thanks.
SBF
From: RThompson@fbm.com [mailto:RThompson@fbm.com]
Sent: Wednesday, November 30, 2011 11:30 PM
To: Fabrizio, Steven B
Cc: Platzer, Luke C; TSchoenberg@fbm.com; ALeibnitz@fbm.com
Subject: RE: Hotfile - Bulgaria
Steve we will consider #1. Don’t see how we could agree to #2. From now on
please copy Tony, Andy and me on all emails. As you know I will be difficult to
reach—am about to board my flight.
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From: Fabrizio, Steven B [mailto:SFabrizio@jenner.com]
Sent: Wednesday, November 30, 2011 6:05 PM
To: Thompson, Rod (27) x4445
Cc: Platzer, Luke C
Subject: RE: Hotfile - Bulgaria
Rod – Will defendants stipulate that:
1. All documents and data they produced in this litigation is authentic; and
2. All of the datasets, including the user email database, constitute business
records under the Federal Rules of Evidence.
We’ll obviously stipulate to the same.
This would help streamline all the depositions.
Please advise and we’ll send over a draft stip.
SBF
From: Thompson, Rod (27) x4445 [mailto:RThompson@fbm.com]
Sent: Wednesday, November 30, 2011 6:43 PM
To: Fabrizio, Steven B
Subject: Re: Hotfile - Bulgaria
Call if you'd like. 4155091874
Rod Thompson
Sent from my iPhone
On Nov 30, 2011, at 3:15 PM, "Fabrizio, Steven B" wrote:
Now I feel like you saying a call would probably work better for
this than email. But I understand the rush of getting ready to
leave.
You have to know that we cannot agree to less than four days.
However, if something will streamline, then we should do it
and I will proceed as quickly as possible to be done earlier.
That works for everyone. As an aside, although relevant, you
do not get to cut off questioning the way you suggest you plan
to do below. As an individual, we can ask Titov whatever we
like. I have said the issues are largely distinct, and they are.
But we are also permitted to ask Titov what he knows as a
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percipient witness. Commingling there would save time. The
same holds for WB’s counterclaim deposition, although there
really is almost no overlap at all so the issue is just not going to
arise.
So think about whether you want to comingle the Hotfile and
Titov depositions on nonͲcounterclaim issues. That is likely to
expedite the deposition, but we’re not in a position to
renegotiate the court’s order on the outer limit. My guess is
that, at a minimum, it would avoid any issues as to the 7 hour
limit.
On housekeeping:
1.
2.
Thanks for the headsͲup. We were planning Russian since
we thought that was his first and most commonly spoken
language. We’ll try to switch to a Bulgarian translator.
We will certainly tell the reporter that you want real time.
SBF
From: RThompson@fbm.com [mailto:RThompson@fbm.com]
Sent: Wednesday, November 30, 2011 6:02 PM
To: Fabrizio, Steven B
Cc: ALeibnitz@fbm.com; Platzer, Luke C
Subject: RE: Hotfile - Bulgaria
Steve, I’ll be en route to Sofia tomorrow.
As to streamlining, “commingling” the days of deposition
would save the most time. It makes little sense for you
to take separate 9 a.m.Ͳ6 p.m. days of deposition for 1)
Anton as individual (where I will not allow 30b6 topics),
2) Counterclaim 30b6 (where I will not allow other
topics) and 3) up to two days as a Rule 30b6 (I will not
know who will cover which topics until next Monday).
Why don’t we agree in advance to a three day outside
limit in exchange for comingling over three days? That
would also give you an incentive to provide translations
in advance as much as possible, as I think you recognize
that will speed things up considerably.
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Also a few housekeeping issues.
1.
If you do bring a translator for Anton, Bulgarian
makes more sense since most of the documents that are
not in English are in Bulgarian and Anton speaks
Bulgarian more often than Russian.
2.
Please have the reporter equipped with Real
Time.
Please let me know ASAP as I leave for Bulgaria shortly.
(I should have email in Bulgaria and I think you know the
cell phone is 415.509.1874.)
Rod
From: Fabrizio, Steven B [mailto:SFabrizio@jenner.com]
Sent: Wednesday, November 30, 2011 2:36 PM
To: Thompson, Rod (27) x4445
Cc: Leibnitz, Andrew (21) x4932; Platzer, Luke C
Subject: Hotfile - Bulgaria
I am around tomorrow if you want to talk through
streamlining possibilities. I have no intention of staying
in Bulgaria one minute longer than I need to and if I can
finish the depositions in 3 or 3.5 days, nothing would
make me happier. In particular, what is your thought
about having Titov sit as the corporate designee and
individually at the same time. How do you see that
working. Also, when will you know if someone other
than Titov will sit on some of the topics.
SBF
Steven B. Fabrizio
Jenner & Block LLP
1099 New York Avenue, N.W.
Suite 900
Washington, DC 20001-4412
Tel (202) 639-6040
Fax (202) 661-4823
SFabrizio@jenner.com
www.jenner.com
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