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)

EXHIBIT C

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-JORDAN

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.

PLAINTIFFS' RESPONSES AND OBJECTIONS TO DEFENDANT HOTFILE CORP.'S
FIRST SET OF INTERROGATORIES
Pursuant to Federal Rule of Civil Procedure 33, Plaintiffs Disney Enterprises, Inc.,
Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Columbia
Pictures Industries, Inc., Warner Bros. Entertainment Inc., and the Motion Pictures Association
of America (collectively, "Plaintiffs") hereby respond to Defendant Hotfile Corporation's
("Defendant" or "Hotfile") First Set of Interrogatories (the "First Interrogatories"):
GENERAL OBJECTIONS

1.

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

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

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privilege, the joint defense or common interest privilege, the attorney work product immunity
doctrine, or any other applicable privilege or doctrine.
2.

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

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

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

disclosure of information beyond that required by the Federal Rules of Civil Procedure or the
Local Rules of the Court.
4.

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

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

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

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

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

to time periods reasonably related to the matters at issue in this litigation. Specifically, Plaintiffs
object to the First Interrogatories to the extent that they seek the production by Plaintiffs of
documents or materials prepared, generated, duplicated, communicated, distributed, or
transmitted prior to Defendants' commencement of operations on Hotfile, as overbroad, unduly
burdensome, and seeking information neither relevant to this action nor likely to lead to the
discovery of admissible evidence. To the extent the Plaintiffs respond to the First Requests,
MPAA will produce non-privileged responsive documents created on or after January 1, 2009, as
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this date is several months prior to Defendants' commencement of operations on the Hotfile
website. Plaintiffs are willing to meet and confer with Defendants regarding whether a search
for documents prior to that date may be appropriate with respect to specific items or requests.
9.

Plaintiffs object to the First Interrogatories to the extent they seeks unavailable

information or information not currently in Plaintiffs' possession, custody or control.
10.

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

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

Plaintiffs object to the First Interrogatories to the

production

of confidential materials or materials relating to the MPPA's trade secrets until such time as the
Court enters a protective order providing for additional confidentiality protections for such
materials. Pending the entry of a protective order, Plaintiffs are producing these responses
subject to the stipulation that disclosure of the portions marked "confidential" shall be limited to
the individuals in Paragraph 3(b) of the protective order currently being negotiated by the parties.
Plaintiffs incorporate these General Objections into each specific response as if fully set
forth in each response.
OBJECTIONS TO SPECIFIC DEFINITIONS
1.

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

exceeds a responding party's obligations under the Federal Rules of Civil Procedure.
2.

Plaintiffs object to the Interrogatories' definitions of "RELATE," "RELATES,"

"RELATING TO," "REFER," "REFERRING," as vague, unduly burdensome, and as calling for
attorney work product insofar as it requires Plaintiffs to determine what "show[s]" or
"evidenc[es]" a particular proposition.
3.

Plaintiffs object to the Interrogatories' definitions of The terms "PLAINTIFFS,"

"YOU," "YOUR" or "THE STUDIOS" insofar as they seek to require Plaintiffs to provide
interrogatory responses and information for entities other than the Plaintiffs, such as their
affiliates and their law firms in matters other than the present action. Information in the
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possession of third parties, such as Plaintiffs' affiliates, agents, and outside counsel other than
counsel in the present action, is irrelevant and unduly burdensome to obtain. Plaintiffs will
respond on behalf of the Plaintiff entities.
RESPONSES AND OBJECTIONS TO SPECIFIC INTERROGATORIES
INTERROGATORY NO. 1:

IDENTIFY all files that were or are available through hotfile.com that YOU allege
infringe YOUR copyrights, including each of YOUR works that YOU allege the file infringed,
identified by name and United States copyright registration number, the URLs at hotfile.com
where YOU allege-that—file-was available, and the time period when YOU allege -the-fil waspresent on hotfile.com .
PLAINTIFFS' RESPONSE AND OBJECTIONS TO INTERROGATORY NO. 1:

Plaintiffs incorporate each General Objection and Objection to Specific Definitions as if
set forth herein.
Plaintiffs object that the Interrogatory is vague, insofar as it is unclear whether the
Interrogatory seeks information regarding all instances of Defendants' infringement of the
illustrative works identified in Exhibit A to the Complaint, or whether it seeks information
regarding each of Plaintiffs' works that have been infringed by Defendants, including works
other than those identified specifically in the Complaint. In the event the latter meaning is
intended, Plaintiffs object that the Interrogatory is overbroad and unduly burdensome in light of
the massive scale of Defendants' infringement, which has prompted Plaintiffs to submit
voluminous notifications of infringement to Defendants in the past two years. In the event the
latter meaning is intended, Plaintiffs further object that the Interrogatory is unduly burdensome
and interposed to harass Plaintiffs insofar as Defendants are already in possession of Plaintiffs'
voluminous takedown notices to Defendants, which indicate the name of the work infringed, the
URL on the Hotfile Website at which such work was infringed, and a date on which an
infringing copy of the work was available, and the Interrogatory seeks to improperly require
Plaintiffs to analyze data already in Defendants' possession. In addition, Plaintiffs are producing
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their takedown notices and records reflecting use of Hotfile's copyright owner accounts in this
litigation, and Defendants are equally capable of analyzing those notices and reports themselves.
Plaintiffs further object that, irrespective of which meaning is intended, the Interrogatory
is premature at this stage in the litigation. Plaintiffs have been limited to external observation of
the website accessible at www.hotfile.com and the servers, software, and databases operated as
part of the website (collectively the "Hotfile Website") and have not yet had the opportunity to
identify each and every infringement of their works on the site. Information necessary to
identify each such infringing file, and digital records necessary to identify the dates on which
each such-file was uploaded la the Hotfile Website, and whether and when each such file was
removed from the Hotfile Website, are in the possession of Defendants and Plaintiffs do not yet
have access to those records. Moreover, insofar as Defendants' own electronic records contain
the information sought by this Interrogatory, particularly with respect to the dates on which each
infringing file was available on the Hotfile Website, a request to Plaintiffs is an impermissible
attempt to transfer to Plaintiffs the burden of analyzing data that Defendants can analyze
themselves.
Plaintiffs also object that the Interrogatory is further premature in light of the bifurcation
proposal currently pending before the Court in Plaintiffs' portion of the joint Rule 26(f) report.
Given the vast scale of Defendants' infringement of Plaintiffs' works, prompting voluminous
notifications of infringement since Hotfile began providing service, it would greatly enhance the
efficiency of this litigation to limit the initial phase of the litigation to liability based on a
manageable subset of works, and therefore to limit discovery to such works in the first phase.
While the Court is considering this proposal, it would be premature to proceed with burdensome
discovery regarding every instance of infringement of all of Plaintiffs' works that Defendants
and their users have ever infringed using the Hotfile service.
BY EACH PLAINTIFF INDIVIDUALLY, IN RELEVANT PART:

Subject to and without waiving the foregoing objections, Plaintiffs state as follows.
Instances in which the Complaint works have been available on Hotfile include the URLs listed
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in the chart attached to these Interrogatory responses as Schedule A. The copyright registration
numbers for each work are listed in Exhibit A to the Complaint. With respect to the
Interrogatory's request to provide "the time period when YOU allege the file was present on
hotfile.com," Plaintiffs will supplement this Interrogatory Response as appropriate following
Defendants' production of the relevant server data. Each Plaintiff certifies the chart attached as
Schedule A with respect to its own copyrighted works, but not with respect to copyrighted works
belonging to any other Plaintiff.
Upon Defendants' production of the relevant server data and any decision from the Court
regarding Plaintiffs' bifurcation proposal, Plaintiffs will meet and confer with Defendants
regarding an orderly process for the identification of additional works in suit and copyright
registration information for such additional works in suit, as well as identification of the dates
and URLs at which each infringement of a work in suit by and through the Hotfile Website
occurred.

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Dated: May 5, 2011

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

Attorneys for Plaintiffs

By: s/ Luke C. Platzer
Luke C. Platzer
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]

CASE NO. 11-20427-JORDAN
VERIFICATION OF DISNEY ENTERPRISES, INC.
have read the :foregoing PLAINTIFFS' RESPONSES AND OBJECTIONS TO
DEFENDANT HOTFILE CORP.'S FIRST SET OF INTERROGATORIES and know its
contents.
1 am an officer of Disney Enterprises, Inc., a party to this action, and am authorized to
make this verification on its behalf, and I make this verification for that reason. 1 am informed
and believe that: the

Mal ter

stated in the foregoing document are true.

Executed on May cP

,

2011, al

Lex,

I declare under penalty of perjury under the laws or the United States that the foregOing is
true and correct.

Signature:
Name (Prin

James I). 1.1anford.

liile

Assistant Treasurer

VERIFICATION OF TWENTIETH CENTURY FOX FILM CORPORATION
Information in Plaintiffs' Responses and Objections to Defendant Hotfile Corp.'s First
Set of interrogatories was provided by me and/or gathered at my direction from corporate
records and personnel. have eviewed the responses. 1 declare under penalty of perjury of the
laws of the United States that the foregoing responses as to Plaintiff Twentieth Century Fox Film
Corporation are true and correct to the best of my knowledge and belief, based on my review of
such information,

Executed on a

, 2011. air )-0.5 )irse).161

CA
Signature:
Name (Print:
Title:

ane c5 ,A-g1a)4
st-cirO Sit-Pe-ttNy

VERIFICATION OF UNIVERSAL CITY STUDIOS PRODUCTIONS ELLP.
Ciabriela.K.ornzweig, pursuant to Fed. R. Civ. P._:13(b)(.1) and 28 U.S.C. § 1746 declare
as follows:
I am Secretary for Universal City Studios Productions 1,L,LP. On behalf of Universal
City Studios Productions LLI„P, I have reviewed the interrogatory responseS contained in
Plaintiffs' 'Responses mid Objections to Defendant .flottile Corp.'s First Set of Interrogatories. I
verify that the answers of Universal City Studios Productions [LEP contained in the foregoing
Responses to Defendants' Interrogatories are true and correct to the best of my knowledge and
belief, that I am authorized to so _verify and that as to matters stated therein that are not within
my personal knowledge I have relied upon infomiation prepared by persons whom I believe to
be reliable, based on information and .records maintained by Universal City Studios Productions
LLD' in the regular and ordinary course of its business.
declare under penalty of perjury under the laws of the United States that the foregoing is
true and Correct.
Executed on May .,...2011, at

•

Signature:
Name (Print):
Title:

ric.-

VERIFICATION OF COLUMBIA PICTURES INDUSTRIES, INC.

I, Jared Jussim, am a corporate officer of Plaintiff Columbia Pictures Industries, Inc. and
am authorized to execute this verification on its behalf.

I have reviewed the interrogatory responses contained in Plaintiff's Responses and
Objections to Defendant Hotfile Corp,:s First Set of Interrogatories. I am informed and believe

and on that basis allege that the matter started therein are true as to Plaintiff Columbia Pictures
Industries, Inc..

I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 2, 2011, at Culver City, California.

Signature:
Name (Pri : Jared Jussim
Title:

Executive Vice President,
Legal Affairs and
Assistant Secretary

VERIFICATION OF WARNER BROS. ENTERTAINMENT INC.
I, Kim Barrett, declare as follows:
I am the authorized agent for Plaintiff Warner Bros. Entertainment inc. I have read the
foregoing Plaintiffs' Responses and Objections to Defendant Hotfile Corp.'s First Set of
Interrogatories and know its contents.
I am informed and believe that the malters stated in the foregoing document are true.
Executed on May 02, 2011, at Warner Bros. Studios, Burbank, California.
I declare under penalty of perjury under the laws of the United States that the foregoing
is true and correct.
Signature:
Name (Print): Kim Barrett
Title:

h/e

tro

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:11-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.,
Plaintiffs,
VS.

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

CERTIFICATE OF SERVICE

I hereby certify that on this 5th Day of May, 2011, I served the foregoing Plaintiffs'
Responses and Objections to Defendant Hotfile Corp.'s First Set of Interrogatories on all counsel
of record on the attached Service List via their email address(es) as set forth on the Court's
CM/ECF filing system, and by overnight delivery as indicated on the attached Service List.
I further certify that I am admitted pro hac vice in the United States District Court for the
Southern District of Florida and certify that this Certificate of Service was executed on this date
at Washington, D.C.
s/ Luke C. Platzer

Luke C. Platzer

60645.2

CASE NO. 11=20427-JORDAN

SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-JORDAN

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
tschoenberg fbm.corn
Roderick M. Thompson
rthompsoniatbm.com
N. Andrew Leibnitz
aleibnitz0)thm.corn
• Deepak Gupta
dg,[e-mail]
Janel Thamkul
ainkulk4fbm.com
235 Montgomery Street
San Francisco, CA . 94104
Phone: [phone]

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
Attorney for Defendants Hotfile Corp. and
Anton Titov

Served via electronic mail by agreement

Attorneys for Defendants Hotfile Corp. and
Anton Titov

Served via electronic mail by agreement
BOSTON LAW GROUP
Valentin Gurvits
825 Beacon Street, Suite 20
Newton Center, MA 02459
Phone: [phone]
Fax: [phone]
ygg 1:y 44 iA? 0 stonkw groqp,com
Attorney for Defendants Hotfile Corp. and
Anton Titov

Served via electronic mail by agreement

60645.2

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