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

Filing 81

MEMORANDUM of Law re 72 Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES (Public Redacted Version)Plaintiff's MOTION to Compel RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES (Public Redacted Version) Memorandum of Law of Defendants Hotfile Corporation and Anton Titov In Opposition to Plaintiffs' Motion to Compel Responses to Requests for Production and Interrogatories by Hotfile Corp., Anton Titov. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit 2, # 18 Exhibit 3, # 19 Exhibit A)(Munn, Janet)

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EXHIBIT B UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION DISNEY ENTERPRISES, INC., TWENTIETH CENTURY FOX FILM CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP, COLUMBIA PICTURES INDUSTRIES, INC., and WARNER BROS. ENTERTAINMENT INC., Plaintiffs, vs. HOTFILE CORP., ANTON TITOV, and DOES 1-10. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11-cv-20427-AJ PLAINTIFFS’ FIRST SET OF INTERROGATORIES Pursuant to Rule 33 of the Federal Rules of Civil Procedure, 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 propound to Defendants Hotfile Corp. and Anton Titov the following First Set of Interrogatories to be answered fully, in writing and under oath within thirty (30) days of the date of service hereof, pursuant to Rule 33(b)(3) of the Federal Rules of Civil Procedure, and in accordance with the Definitions and Instructions set forth below. DEFINITIONS AND INSTRUCTIONS 1. The words “you,” “yours,” “yourselves,” and “Defendants” means Anton Titov and Hotfile Corp., and includes (i) any directors, officers, accountants, investigators, attorneys, employees, agents, representatives or other persons acting, authorized to act, or purporting to act, on behalf of Hotfile Corp. or Anton Titov; (ii) all of Hotfile Corp.’s affiliates, divisions, units, 1 predecessors-in-interest, successors-in-interest, subsidiaries, parent corporations, and assigns; (iii) any other person or entity otherwise subject to Hotfile Corp.’s or Anton Titov’s control, who controls Hotfile Corp., or is under common control with Hotfile Corp. 2. The terms “Hotfile” and “Hotfile Website” mean the website accessible at www.hotfile.com and hotfile.com and encompasses all servers, software, and databases operated as part of the website. 3. The term “Hotfile Entity” means Hotfile Corp., Hotfile, S.A., and Hotfile, Ltd., as well as any entity involved with or that you claim is involved with the operation of the Hotfile Website, as well as any entity controlled, operated, affiliated with, or owned by any Defendant, in whole or in part, that performs or has performed any services related to the Hotfile Website, and shall further include principals, executives, officers, directors, employees, agents, representatives, or shareholders of such entity. 4. The term “Lemuria” means Lemuria Communications Inc. (“Lemuria”), including any principals, executives, officers, directors, employees, agents, representatives, or shareholders of Lemuria, all of Lemuria’s affiliates, divisions, units, predecessors-in-interest, successors-ininterest, subsidiaries, parent corporations, and assigns, and any other person otherwise understood by you to be subject to Lemuria’s control, who controls Lemuria, or is under common control with Lemuria. 5. The singular shall include the plural and vice versa; the terms “and” or “or” shall be both conjunctive and disjunctive; and the term “including” shall mean “including without limitation.” 6. “Date” shall mean the exact date, month and year, if ascertainable or, if not, the best approximation of the date (based upon relationship with other events). 2 7. The word “document” shall have the meaning of the term “documents or electronically stored information” in Federal Rule of Civil Procedure 24(a)(1)(A). 8. “Agent” shall mean any agent, employee, officer, director, attorney, independent contractor or any other person acting at the direction of or on behalf of another. 9. “Person” shall mean any individual, corporation, proprietorship, partnership, trust, association or any other entity. 10. The words “pertain to” or “pertaining to” mean relates to, refers to, regarding, contains, concerns, describes, embodies, mentions, constitutes, constituting, supports, corroborates, demonstrates, proves, evidences, shows, refutes, disputes, rebuts, controverts or contradicts. 11. The term “third party” or “third parties” refers to individuals or entities that are not a party to this action. 12. The word “identify,” when used in reference to a document (including electronically stored information), means and includes the name and address of the custodian of the document, the location of the document, and a general description of the document, including (1) the type of document (e.g., letter or memorandum) and, if electronically stored information, the software application used to create it (e.g., MS Word or MS Excel Spreadsheet); (2) the general subject matter of the document or electronically stored information; (3) the date of the document or electronically stored information; (4) the author of the document or electronically stored information; (5) the addressee of the document or electronically stored information; and (6) the relationship of the author and addressee to each other. 13. The word “identify,” when used in reference to a natural person, means and includes the person’s full name, position and/or title, and present contact information. Stating 3 that a person can be contacted through counsel is not sufficient. If the person is a Hotfile user, also state the person’s account name and user ID. 14. The term “Hotfile user” means any person who has directed his or her Internet browser to the Hotfile Website or otherwise accessed the Hotfile Website, including any person who has registered with the Hotfile website, any person who has at any time opened a “Premium” account with the Hotfile website, and any person who has at any time been a participant in any of the Hotfile Website’s “Affiliate” programs. 15. The term “Content File” means any electronic file uploaded to, stored on and/or downloaded from the Hotfile Website by any Hotfile user at any time. 16. The term “Affiliate programs” means all offers, programs or practices whereby Hotfile users receive compensation from any Defendant or Hotfile Entity, including the “Affiliate” program for uploading users and the “Referral” programs “for site owners” and “Refer a friend” as described at http://www.hotfile.com/affiliate.html. 17. You are reminded to supplement your responses to these requests and your documents produced in response to these requests in accordance with Rule 26 of the Federal Rules of Civil Procedure. INTERROGATORIES INTERROGATORY NO. 1: Identify each person who has been employed by, acted as the agent of, or performed work on behalf of or provided any service to (including as a contractor) the Hotfile Website and each Hotfile Entity from January 1, 2007 through the present day. For each such person or entity, state: a) Full name; 4 b) Title and/or employer during the period(s) such services or agency were provided (e.g. Hotfile Corp., Hotfile, S.A., Hotfile Ltd., or, if the person is a contractor, the third-party employer); c) The nature of all work performed and/or the scope of the person’s representation or agency (e.g. database manager, marketing manager, DMCA agent, abuse manager, etc.); d) The length of time such person performed relevant services or representation; e) Any Hotfile username and user identification number associated with the person; and f) Present contact information (including current email address, physical address, and telephone number), or, if present contact information is not known to you, last known contact information. It is not sufficient, for purposes of providing a person’s contact information, to state that a person can be contacted through Defendants’ counsel. INTERROGATORY NO. 2: Identify each individual or entity that you contend has ever acted as a DMCA agent for the Hotfile Website or any Hotfile Entity; including: a) The date you contend the person commenced (and, if applicable, concluded) acting as a DMCA agent for the Hotfile Website or any Hotfile Entity; b) The date on which a designation of the person’s status as DMCA agent was filed with the copyright office; and c) The date on which the person’s status as DMCA agent was first listed on the Hotfile Website. INTERROGATORY NO. 3: Identify each website or online business you have owned or operated, in whole or in part, or to which you have provided services or funding, in the past three years, other than the Hotfile Website, including the timing and nature of the services provided, and any remuneration you have received for such services or funding. INTERROGATORY NO. 4: Identify each person who has provided, provides, has promised to provide, or with whom Defendants have had any discussions about providing capital or financing for any Hotfile Entity, and the nature, amount, and timing of any such capital or financing. 5 INTERROGATORY NO. 5: Identify each person to whom you or any Hotfile Entity has provided, provides, or has promised to provide earnings derived in whole or in part from the operation of the Hotfile Website, and the nature, amount, and timing of any such payments. INTERROGATORY NO. 6: State the gross revenues, net revenues, and profits received by each Hotfile Entity since January 1, 2007. INTERROGATORY NO. 7: State all income received by Defendant Titov, directly or indirectly, in connection with the Hotfile Website or from any Hotfile Entity. INTERROGATORY NO. 8: Identify each participant in the Hotfile “Reseller” program. INTERROGATORY NO. 9: Identify the 500 participants in the Hotfile “Affiliate” programs to whom any Defendant or Hotfile Entity has remitted, directly or indirectly, the largest cumulative payments during the history of Hotfile, and the cumulative amounts of such payments. INTERROGATORY NO. 10: Identify each user whose access to the Hotfile website any Defendant or Hotfile Entity has ever terminated, limited, suspended, or otherwise penalized, and for each state: a) The specific reason(s) therefore; b) The date on which such action was taken; and c) Whether the user was believed or alleged to be a copyright infringer or a repeat infringer. For purposes of responding to this Interrogatory, Plaintiffs do not believe that Defendants may lawfully withhold information on the basis that it contains identifying information regarding 6 specific Hotfile users. Without prejudice to Plaintiffs’ right to seek the identity and additional information pertaining to such users, Defendants may, in the first instance, limit their identification of users in response to this Interrogatory by identifying the users’ usernames, Hotfile user identification number, and geographic location (such as by providing country, city and state information and/or sufficient unredacted IP address information). INTERROGATORY NO. 11: Describe each connection Defendant Titov has to Florida in the last ten years, including: a) Any Florida driver’s licenses ever held; b) Any Florida property owned, in whole or in part; c) Any leases or rental agreements, in whole or in part, for property in Florida; d) Any utilities in Titov’s name, in whole or in part, for property in Florida; e) Any bank accounts Titov has ever held in Florida; f) Any travel to Florida in the past ten years, including: i. the length of each such trip; ii. the location where Defendant Titov resided or stayed during each such trip; iii. any persons or entities with whom Defendant Titov met during each such trip; and iv. the substance and purpose of each such trip. 7 Dated: April 1, 2011 By: s/ Luke C. Platzer Luke C. Platzer MOTION PICTURE ASSOCIATION OF AMERICA, INC. Karen R. Thorland (Pro Hac Vice) 15301 Ventura Blvd. Building E Sherman Oaks, CA 91403 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: 202-639-6000 Fax: 202-639-6066 Attorneys for Plaintiffs GRAY-ROBINSON, P.A. Karen L. Stetson (FL Bar No. 742937) 1221 Brickell Avenue Suite 1600 Miami, FL 33131 Phone: 305-416-6880 Fax: 305-416-6887 8

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