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 6

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Penn

it 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-AJ
(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 Amphiteatre Parkway, Mountain View, CA 94043

ED to produce at the time, date, and place set forth below the following
the

~ Production: YOU ARE COMM AND

documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of

material: See Schedule A

and Time:

Place: County Process Service, Inc.
31 East Julian Street

05/06/2011 5:00 pm

12

o Inspection of Premises: YOU ARE COMMANDE D to permit entry onto the designated premises, land, or
other property 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:

Place

The provisions of

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.
Date: 04/04/2011

CLERK OF COURT

OR
Signature of

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

Clerk or Deputy Clerk

the attorney representing (name afparty) Disney Enterprises, Inc.,

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

AO 88B (Rev. 06/09) Subpoena to Produce Documents. Infonnation, or Objects or to Pemiit Inspection of

Premises in a Civil Action (Page 2)

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

(This section should not befiled with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name afindividual and title, ifany)

Inc.

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:

its officers or agents, I have also
the United States, or one of
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 $

for travel and $

for services, for a total of $

I declare under penalty 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 88B (Rev 06/09) Subpoena to Produce Documents, Information, or Objects or to Penn

Federal Rule of

it Inspection ofPremises

in a Civil Action(Page 3)

Civil Procedure 45 (c), Cd), 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

(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

earnings and reasonable attorney's fees on a party or attorney

course of business or must organize and label them to correspond to

who fails to comply.

the categories in the demand.

(2) Commnd 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 party 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

served before the earlier of

party may move the issuing court for an order compelling production
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 party 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 party nor a party's offcer
to travel more than 100 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 Permitted. To protect a person su~ject 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.

Stored Information Not
(B) Formfor Producing Electronically
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) Electranica¡rv 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 part 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, will enable the
paries 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 part disclosed it

before being notified; and may promptly present the information to
the claim. The person
who produced the information must preserve the information until
the claim is resolved.
the court under seal for a determination of

(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).

SCHEDULE 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 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 order is being negotiated in this action and will be provided to you

once it is executed by the parties and entered by the Court.
DOCUMENTS TO BE PRODUCED
REQUEST NO. 1:
Documents sufficient to identify each email account you host on behalf of any Hotfile
Party (e.g., [e-mail]; [e-mail]), including without limitation:
a. Each name associated with each such account;
b. Each email address associated with each such account;
c. Each physical address associated with each such account;
d. The dates each such account was created and, if applicable, closed;
e. The dates each such account was first and, if applicable, last used;
f. Each Internet Protocol address from which each such account has been accessed,
and the dates of each such access.
REQUEST NO. 2:
Documents sufficient to identify each email account you host for the lemuriaco.com
domain and its subdomains, and/or for Lemuria Communications, Inc., including without
limitation:
a. Each name associated with each such account;
b. Each email address associated with each such account;
c. Each physical address associated with each such account;
d. The dates each such account was created and, if applicable, closed;
e. The dates each such account was first and, if applicable, last used.

2

REQUEST NO. 3:
All reports and data you have collected, prepared, displayed, or otherwise made available
through the Google Analytics service to any Hotfile Party, whether regarding the Hotfile Website
or any other website.

3