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EXHIBIT 5
EXHIBIT 5Page 021
Case 2:06-cv-05578-SVW-JC Document 567-12 Filed 08/26/13 Page 1 of 14 Page ID#:5443
1
Ranahan, Erin R.
From:
Fabrizio, Steven B <SFabrizio@jenner.com>
Sent:
Tuesday, August 20, 2013 4:21 PM
To:
Golinveaux, Jennifer A.; Elkin, Michael S.
Cc:
Lane, Thomas Patrick; Ranahan, Erin R.; Ira Rothken; Jared Smith; Servodidio, Gianni P.;Doroshow, Kenneth L.; Wright, Aaron J.; Chapuis, Emily L.; Unikowsky, Adam G.;Kearney, Thomas J.
Subject:
Re: Isohunt - Ex Parte Application for Evidentiary Sanctions
Attachments:
Ex Parte for Evid Sanctions - Fabrizio Decl., Ex. 1 (8.20.13).pdf; Ex Parte for EvidSanctions - Fabrizio Decl. (8.20.13).pdf; Ex Parte for Evid Sanctions (8.20.13).pdf
Jennifer
–
As
we
advised
in
our
email
this
morning,
we
felt
we
had
no
choice
but
to
file
our
application
for
evidentiary
sanctions,
which
we
filed
a
few
moments
ago.
Courtesy
copies
are
attached.
We
did
not
receive
the
sample
website
data
in
sufficient
time
to
download
it
and
analyze
it,
to
even
know
if
it
is
what
defendants
claim
it
to
be.
While
you
sent
your
email
below
a
little
after
3pm
ET,
your
colleague
did
not
send
the
link
for
the
sample
data
until
later
and
the
link
was
not
working
until
about
5pm
ET.
Thereafter,
it
took
some
time
to
download
and
assemble
–
in
part
because
of
the
way
defendants
produced
the
sample
data.
Our
experts
advise
us
that
defendants
configured
the
data
such
that
plaintiffs
had
to
jump
through
unnecessary
hoops
to
get
access
to
it.
That
type
of
behavior
just
confirms
our
well
‐
founded
expectations
when
dealing
with
your
clients.
Regardless,
we
are
just
now
able
to
begin
to
assess
what
you
sent.
If
you
would
like
to
arrange
a
time
tomorrow
when
we
can
talk
to
see
if
there
is
any
potential
resolution
that
is
viable,
I
will
do
my
best
to
make
myself
available
at
your
convenience.
I
would
ask,
however,
that
defendants
have
present
on
the
call
whatever
counsel
are
necessary
to
make
decisions,
and
have
your
clients
reachable
in
the
event
you
need
to
consult
with
them.
If
we
are
to
have
any
chance
of
coming
to
any
form
of
understanding,
we
cannot
afford
to
lose
multiple
days
between
conversations.
As
for
the
ex
parte,
plaintiffs
are
ready
to
discuss
stipulating
to
a
briefing
schedule
that
relieves
defendants
of
the
normal
opposition
deadline
under
the
local
rules.
I
am
available
to
have
that
discussion
tonight
or
any
time
tomorrow.
But,
to
avoid
miscommunication,
absent
a
written
stipulation
among
the
parties
or
an
order
of
the
Court,
plaintiffs
will
expect
defendants
to
abide
by
all
federal
and
local
rules
regarding
their
opposition
papers.
(I
will
be
out
of
pocket
for
a
couple
of
hours
from
7:45pm
to
9:45pm
ET,
but
available
before
or
after
that
to
talk
tonight.)
SBF
From:
<Golinveaux>,
"Jennifer
A."
<JGolinveaux@winston.com<mailto:JGolinveaux@winston.com>>
Date:
Tuesday,
August
20,
2013
3:12
PM
To:
Steven
Fabrizio
<sfabrizio@jenner.com<mailto:sfabrizio@jenner.com>>,
Michael
Elkin
<melkin@winston.com<mailto:melkin@winston.com>>
Cc:
Thomas
Lane
<tlane@winston.com<mailto:tlane@winston.com>>,
Erin
Ranahan
<eranahan@winston.com<mailto:eranahan@winston.com>>,
Ira
Rothken
<Ira@techfirm.net<mailto:Ira@techfirm.net>>,
Jared
Smith
<jared@techfirm.net<mailto:jared@techfirm.net>>,
"Servodidio,
Gianni
P."
<GServodidio@jenner.com<mailto:GServodidio@jenner.com>>,
Kenneth
Doroshow
<kdoroshow@jenner.com<mailto:kdoroshow@jenner.com>>,
"Wright,
Aaron
J."
<AJWright@Jenner.com<mailto:AJWright@Jenner.com>>,
"Chapuis,
Emily
L."
<EChapuis@jenner.com<mailto:EChapuis@jenner.com>>,
"Unikowsky,
Adam
G."
<AUnikowsky@jenner.com<mailto:AUnikowsky@jenner.com>>,
"Kearney,
Thomas
J."
<TKearney@winston.com<mailto:TKearney@winston.com>>
EXHIBIT 5Page 022
Case 2:06-cv-05578-SVW-JC Document 567-12 Filed 08/26/13 Page 2 of 14 Page ID#:5444
2
Subject:
RE:
Isohunt
‐
IP
Addresses
and
Affirmative
Defenses
Steve,
Putting
aside
your
posturing
below
for
the
moment,
I
understand
the
four
days
of
data
for
the
Isohunt
site
is
ready
now.
You
will
be
receiving
email
instructions
regarding
access
shortly.
Please
confirm
once
you
have
received
the
data.
We
are
looking
into
whether
the
data
for
the
Isohunt
site
for
the
period
you
have
identified
can
be
expedited
faster
than
ten
days
and
I
will
respond
separately
on
that
and
the
redaction
issue.
Jennifer
Jennifer
Golinveaux
D:
+1
(415)
591
‐
1506
http://www.winston.com
‐‐‐‐‐
Original
Message
‐‐‐‐‐
From:
Fabrizio,
Steven
B
[mailto:SFabrizio@jenner.com]
Sent:
Tuesday,
August
20,
2013
7:36
AM
To:
Golinveaux,
Jennifer
A.;
Elkin,
Michael
S.
Cc:
Lane,
Thomas
Patrick;
Ranahan,
Erin
R.;
Ira
Rothken;
Jared
Smith;
Servodidio,
Gianni
P.;
Doroshow,
Kenneth
L.;
Wright,
Aaron
J.;
Chapuis,
Emily
L.;
Unikowsky,
Adam
G.;
Kearney,
Thomas
J.
Subject:
Re:
Isohunt
‐
IP
Addresses
and
Affirmative
Defenses
Jennifer
‐
I
can
see
you
are
one
who
likes
to
twist
words.
Fair
enough.
I
said
it
doesn't
matter
whether
we
continued
to
press
for
the
data
over
the
last
years
because
we
had
fought
very
hard
for
an
order
to
get
the
data
and
pressed
for
it
vigorously
until
defendants
made
it
clear
that
they
were
not
going
to
honor
the
order.
I
said
I
was
not
going
to
waste
my
time
going
back
through
correspondence
from
6
years
ago
to
present
to
you
our
efforts
to
get
defendants
to
obey
the
Court
order
‐
because
it
does
not
matter
how
many
times,
or
even
if,
we
asked
for
the
data.
Defendants
were
ordered
by
the
Court
to
preserve
and
produce
the
data.
It
is
not
our
jobs
as
plaintiffs
keep
asking
defendants
to
obey
a
valid
Court
order.
If
defendants
do
not
see
that,
then
there
is
nothing
we
are
going
to
be
able
to
say
to
make
defendants
understand.
But
if
you
want
open
communication
among
counsel,
then
you
should
be
more
careful
when
trying
to
throw
our
words
back
at
us.
You
also
misstate
my
representation
below.
We
said
we
would
enter
into
such
a
stipulation
in
exchange
for
defendants
producing
the
data
with
the
full
IP
addresses
unredacted.
We
will
do
that
to
expedite
the
production.
(You
were
the
one
who
kept
saying
that
redacting
the
IP
addresses
would
take
extra
time.)
Apparently
defendants
do
not
have
an
interest
in
expediting
the
production.
At
this
point,
we
need
the
full
IP
addresses.
Defendants
have
made
it
clear
that
they
intend
to
challenge
the
geographic
location
of
downloading
users.
I
have
two
or
three
times
now
said
we
would
consider
accepting
the
IP
addresses
with
the
last
octet
redacted
provided
that
defendants
will
stipulate
not
to
challenge
the
results
of
geolocation
analysis
of
IP
addresses
with
the
last
octet
redacted.
Since
defendants
have
studiously
avoided
giving
that
representation,
we
don't
want
to
leave
ourselves
in
a
disadvantaged
position
when
proving
the
users
were
in
the
US.
Magistrate
Judge
Chooljian
allowed
defendants
to
mask
the
IP
addresses
because
at
the
time
the
location
of
the
downloaders
was
not
an
issue
and
it
was
not
clear
that
defendants
would
raise
it
as
an
issue.
Judge
Chooljian
made
clear,
however,
that
she
would
revisit
that
ruling
if/when
defendants
challenged
the
location
of
the
downloading
users.
Defendants
should
be
able
get
us
the
sample
data
for
at
least
the
Isohunt.com
website
earlier
than
this
evening.
Please
ask
Fung
to
prioritize
Isohunt
and
get
us
that
data
by
early
afternoon
ET.
We
need
the
data
early
enough
to
analyze
it
to
make
a
determination
as
to
whether
the
data
is
what
defendants
claim
it
to
be.
EXHIBIT 5Page 023
Case 2:06-cv-05578-SVW-JC Document 567-12 Filed 08/26/13 Page 3 of 14 Page ID#:5445
