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

Filing 87

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. re 85 Reply to Response to Motion,, PLAINTIFFS' NOTICE OF FILING REPLY DECLARATION OF DUANE C. POZZA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES (Attachments: # 1 Affidavit REPLY DECLARATION OF DUANE C. POZZA IN SUPPORT OF MOTION TO COMPEL, # 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 (public redacted version))(Stetson, Karen)

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.
/

REPLY DECLARATION OF DUANE C. POZZA IN SUPPORT OF PLAINTIFFS’
MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF
DOCUMENTS AND INTERROGATORIES
I, Duane C. Pozza, hereby declare as follows:
1.

I am a partner at the law firm of Jenner & Block LLP, and counsel to the plaintiffs

Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios
Productions LLLP, Columbia Pictures Industries, Inc., and Warner Bros. Entertainment Inc.
(“plaintiffs”). I submit this declaration in reply to defendants’ Opposition to Plaintiffs’ Motion
to Compel Responses to Request for Production and Interrogatories. The statements made in this
declaration are based on my personal knowledge including on information provided to me by
colleagues or other personnel working under my supervision on this case.
2.

Defendants claim in their motion that plaintiffs have “misstat[ed]” their intention

to continue the meet-and-confer process and that defendants were “ambush[ed]” by this motion.
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Opp. at 1, 2. This is not accurate. The parties met and conferred regarding the subjects of
plaintiffs’ motion to compel on four separate occasions, May 11, May 16, May 19, and May 20.
In particular, the parties discussed plaintiffs’ requests for Content Reference, User, and Affiliate
Data on May 11, May 16, and May 19. On May 19, defendants’ counsel made clear that
defendants were standing on their objections as to the Content Reference and User Data in
particular. Plaintiffs’ counsel noted that similar data was ordered produced in similar online
infringement cases and, in response to defendants’ counsel request, offered to send the relevant
orders to defendants. But at the same time, defendants’ counsel was clear that defendants’
position against producing the requested data would not change. On the next day, May 20, I sent
an email, attached as Exhibit A to my May 31, 2011 declaration in support of plaintiffs’ motion
to compel, documenting that defendants were still refusing to produce this data and that we
understood our meet-and-confer on those requests to be concluded in light of their refusal: “We
also indicated that we would send copies of orders compelling production of user activity data. I
am therefore attaching orders from the Bunnell and Fung cases. The Bunnell order was upheld
by the district court at 245 F.R.D. 443. As we discussed, the parties are currently at an impasse
on producing complete Content Reference, User, and Affiliate Data, and defendants have given
no indication of changing their position. We are sending these as a courtesy but do not
understand that our meet-and-confer is being reopened on this issue.” (emphasis added).
Likewise, defendants have always been clear in the parties’ meet-and-confers that the requested
source code and financial information would not produced.
3.

Subsequent to the meet and confer on May 20, the parties continued to meet-and-

confer on other requests and interrogatories not included in plaintiffs’ motion. The plaintiffs
have always been clear that they intended to move to compel on the requests and interrogatories

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included in their motion, and defendants were clear in the four meet-and-confer discussions prior
to bringing the motion to compel that the requested documents and information would not be
provided. And indeed, defendants continue to refuse to provide the requested documents and
information. As for the foreign privacy statutes on which defendants rely, in the context of
meeting and conferring on Affiliate data, defendants pointed to websites listed numerous privacy
statutes. The parties discussed the applicability of the European Privacy Directive specifically in
the context of other requests to defendants.
4.

In the weeks of discussion after defendants’ objections to document requests and

interrogatories were served on May 5, 2011, defendants’ objections to production of content
reference and user data relied on arguments as to relevance and burden. The argument that the
data should not be produced because the Stored Communications Act (“SCA”) barred production
of content files was not raised until after the motion was filed. In fact, following the filing of this
motion, plaintiffs and defendants engaged in further discussions as to whether the required data
could be produced using a multi-step process that would have been more burdensome overall,
but would have provided plaintiffs with the data for their relevant analyses. On June 8, 2011,
defendants’ counsel sent plaintiffs’ counsel an email specifically offering to produce certain of
the content reference and user data, as well as certain content files. However, that proposal
would not have provided sufficient data for plaintiffs to conduct their statistical analysis, and on
the same day, my colleague Steven Fabrizio responded with a counter-proposal with reasonable
changes that would have enabled the plaintiffs to obtain the data for the statistical analyses to go
forward. A true and correct copy of the email from Steven Fabrizio to Rod Thompson, also
containing Mr. Thompson’s proposal on behalf of defendants, is attached hereto as Exhibit A.
After that email, more than four weeks after the first meet-and confer on the requests for the

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content reference and user data, defendants’ counsel raised questions about the Stored
Communications Act as an issue. In a call on June 15, 2011, defendants’ counsel stated that they
were rejecting the counter-proposal on the grounds that the SCA barred disclosure of content
files.
5.

Attached hereto as Exhibit B is a true and correct copy of the Order (1) Granting

Plaintiffs’ Ex Parte Application; (2) Granting Plaintiffs’ Request for Sanctions, Attorneys’ Fees
and Costs; and (3) Cautioning Defendants Regarding Potential Consequences of Further
Violations of Discovery Obligations and Orders from Columbia Pictures Industries, Inc. v. Fung,
No 06-cv-05578 (C.D. Cal. Aug. 10, 2007).
6.

Attached hereto as Exhibit C is a true and correct copy of a printout of the article

“Non-EU Websites Must Operate Under EU Privacy Laws” from the Wall Street Journal Online,
dated March 16, 2011, printed on June 23, 2011 from the URL http://blogs.wsj.com/techeurope/2011/03/16/non-eu-websites-must-operate-under-eu-privacy-laws.
7.

Attached hereto as Exhibit D is a true and correct copy of a printout of a

screenshot of the Hotfile website, from July 28, 2010 from the URL
http://www.hotfile.com/affiliate.html, also attached as Exhibit B to the Complaint. On that page,
the website states, “We are trying to encourage the good promoters by increasing their earnings
and to reduce the earnings for uploaders that mainly use the free hotfile resources for storage.”
Attached hereto as Exhibit E is a true and correct copy of a printout of a screenshot of the Hotfile
website, from July 28, 2010 from the URL http://www.hotfile.com/faq.html, also attached as
Exhibit C to the Complaint. On that page, the website states, “Upload files only if you intent to
promote them.”

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8.

According to the Hotfile website, Hotfile began adopting what it termed as a

“more aggressive” policy of terminating users who were subject to repeated claims of copyright
infringement on or about February 19, 2011. This is reflected in the attached Exhibit F, which is
a true and correct copy of a printout of the Hotfile News Page, printed June 23, 2011 from the
URL http://hotfile.com/news.html. Attached as Exhibits G and H are true and correct copies of
printouts from the website Alexa.com, printed June 23, 2011 from the URL
http://www.alexa.com/siteinfo/hotfile.com, showing Alexa’s measure of the “Reach” and
“Pageviews” of hotfile.com over the last six months, which show a decline in Hotfile’s traffic
since the end of February 2011.
9.

Plaintiffs are seeking leave to file under seal Exhibit I, which are true and correct

copies of documents bates labeled HF00034459, HF00034587, HF00034686, produced by
defendants in this case and designated “Confidential” by the defendants under the Protective
Order entered in this case.

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

Executed on June 24, 2011.

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