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Impoundment Issues and an Agreement on "Narrowed" Subpoenas in SCEA v. Hotz - Updated 2Xs - EFF letter
Thursday, March 03 2011 @ 01:58 PM EST

The parties in SCEA v. Hotz have been trying to work out their differences about the impoundment protocol. The parties can't agree, so they have written a joint letter to the magistrate judge, Judge Joseph Spero, laying out their conflicting positions. If you recall, the presiding judge, Hon. Susan Illston, told the parties to work these things out with the magistrate judge. So this is following up with that directive.

The parties have reached an agreement on the scope of the third-party subpoenas on Bluehost, Twitter, Google, YouTube, Softlayer and such regarding jurisdictional discovery that Sony feels it needs to counter George Hotz's Motion to Dismiss. Or more exactly, SCEA says they have reached agreement. The parties still don't agree on subpoena to Paypal, an issue already before the court.

The SCEA letter to the magistrate judge regarding the subpoenas states:

As ordered by this Court, on February 14, 2011, counsel for the parties met and conferred to resolve their dispute as to the scope of the subpoenas to be served on the third party Internet Service Providers (“ISPs”), including Bluehost, Twitter, Google, YouTube, Softlayer and PayPal. As a result of this meet and confer, the parties narrowed the scope of several of the subpoenas and agreed to provide for protection of confidential information obtained through some of the subpoenas through an Attorneys Eyes Only designation. SCEA also agreed not to pursue, as part of its jurisdictional discovery, several of the third party subpoenas originally included in its Motion for Expedited Discovery. (Docket No. 62). Accordingly, the parties agreed that subject to this Court’s entry of an order, SCEA may proceed to serve its subpoenas on Bluehost, Twitter, Google, YouTube, and Softlayer for purposes of jurisdictional discovery. The parties’ agreement, along with the revised language and scope of the relevant subpoenas, was memorialized in the Joint Letter submitted to this Court on February 18, 2011. (Docket No. 85 at 10). For the Court’s convenience, the proposed subpoenas are attached hereto as Exhibits A-E.

Because the information sought by SCEA through these agreed upon subpoenas is necessary to its response to the Motion to Dismiss and is narrowly tailored to seek jurisdictional discovery only, SCEA respectfully requests that the Court enter an order allowing SCEA to proceed to serve the subpoenas as set forth in the attached Exhibits A-E. SCEA further requests that the Court order third parties to comply with this discovery by no later than March 16, 2011, so that SCEA will have responsive discovery in advance of its deadline to oppose the Motion to Dismiss.

EFF had already filed an amicus curiae letter based on the original subpoenas, asking the court not to grant them as overbroad. But the letter says since SCEA has now agreed to narrow the subpoenas, the EFF letter is "moot" and should not be granted. I don't know if EFF will agree. Its objection included free speech concerns. Here's a look at what SCEA now wants from each entity:
  • Bluehost: They provide the server for Mr. Hotz’s website, www.geohot.com, and Sony wants to know "who have downloaded the circumvention devices from Mr. Hotz’s website". A footnote adds: "It is SCEA’s understanding that the only identifying information held by Bluehost consists of the IP addresses for computers or networks being used to download the circumvention devices. Using this information, SCEA will be able to determine the geographic locations where the downloading of circumvention devices occurred. This is clearly relevant to further establishing Mr. Hotz’s contacts with California, as well as determining the total scope of his distribution of the circumvention devices."
  • Twitter: "This subpoena seeks “Tweets” published by Mr. Hotz, many of which SCEA believes relate directly to his hacking of the PS3 System."
  • Google (Blogspot): "This subpoena seeks to discover information relating to a specific Blogspot account that is owned by Mr. Hotz, www.geohotps3.blogspot.com, and information regarding persons who also posted content to that website in the form of blog comments....SCEA seeks to determine whether Mr. Hotz discussed his hacking of the PS3 System with persons in California through his blog."
  • YouTube: "YouTube Subpoena This subpoena seeks to discover information regarding all persons who currently have access to a “private video” uploaded by Mr. Hotz demonstrating his use of the circumvention devices on the PS3 System, and those who posted comments in response to the video. Mr. Hotz posted the video for public viewing on January 7, 2011. Since that time, the video became “private.” Pursuant to the TRO entered on January 27, 2011 (and the subsequent Preliminary Injunction), Mr. Hotz is prohibited from publishing or posting any circumvention devices or instructions on how to use them, and cannot assist, facilitate or encourage others to engage in the unlawful activity enjoined by the Court. (See Docket Nos. 50 and 87). Therefore, SCEA must be able to discover what persons, if any, are still able to access the “private” video after the TRO went into effect in order to ascertain whether Mr. Hotz continues to share this “private” video regarding his hacking of the PS3 System with persons in California and determine whether Mr. Hotz has violated the TRO and Preliminary Injunction."
They call this narrowed, but it still seems mighty broad to me, particularly when you consider that if Sony sued Hotz in New Jersey, where he lives, instead of in California, none of this would be necessary at this point. Sony wants to send the subpoenas in order to prove a link to California, so it can stay in that state. How "moot" do EFF's concerns seem to you now? SCEA responds:
The EFF also challenges the YouTube subpoena under the Video Protection Privacy Act, 18 U.S.C. § 2710 (“the VPPA”) and the Stored Communications Act, 18 U.S.C. § 2701 et seq. (“the SCA”). Contrary to the EFF’s assertions, neither the VPPA nor the SCA prohibit the issuance of the third party subpoena to YouTube. The VPPA does not mandate a per se prohibition on disclosure of “personally identifiable information” as the EFF implies. In fact, nothing in the YouTube subpoena prevents YouTube from providing notice of this action to user, nor does the subpoena deprive users of the opportunity to “appear and contest the claim” as required under the VPPA. See 18 U.S.C. § 2710(b)(2)(F). To the extent that the VPPA requires SCEA to provide notice to users directly, SCEA is unable to do so until the subpoena issues as it does not presently know the identity of these users. Thus, the YouTube subpoena does not violate the VPPA. Nor does the YouTube subpoena violate the SCA. Nothing in the YouTube subpoena prevents YouTube from first obtaining the “lawful consent of the...subscriber...” for disclosure of information regarding persons who have access to the “private video” that Mr. Hotz uploaded on YouTube before providing such information in response to the subpoena. See 18 U.S.C. § 2702(b)(3).
The problem with private corporations seeking private business interests is that they have no clue about the damage they do to the Internet and all the businesses that rely on it. Who wants to visit YouTube now? You might get sued someday for something that doesn't look illegal to you at the moment, and presto, your personal info is splashed around the world. Even if it is only provided "For Attorneys Eyes Only", if they represent the entity suing, it's awful. Bull in the China Shop Syndrome. But if you want it fixed, you have to get the legislators to fix this problem, and ... well... lobbyists don't represent you.

The impoundment was supposed to happen on February 28, but they couldn't agree on how to proceed. Hence the letter. We learn that the parties jointly retained a company called The Intelligence Group as the third party neutral to handle the process, and George Hotz handed over two hard drives and a calculator. The question now is, how extensively can TIG search, how many copies can it make of the hard drives, and then what happens? Sony wants to do discovery regarding the jurisdiction issue; Hotz feels that he is being snookered into turning over materials not outlined in the impoundment order, and I gather he doesn't trust SCEA or TIG not to go pawing through his hard drives in ways he feels isn't called for. Sony says it will be offering a motion shortly asking for the right to go through the hard drives, so Hotz is not imagining things. And TIG seems to be spooked by it all and doesn't want to go forward without clearer instructions from the court.

The biggest dispute is regarding storage, whether TIG can make copies of the unencrypted hard drives. Hotz clearly feels that impoundment and discovery are two different things, and that impoundment doesn't mean storage now so later SCEA can paw through them. Of course, that is precisely what SCEA does want at some point. Note that the encrypted hard drives do have to be provided in unencrypted form so TIG can search through them, but until this copying issue is resolved, Hotz is refusing to provide the key. Instead he offers to go back to the earlier impoundment order, whereby TIG holds on to the originals, instead of copying them and returning the originals to him.

Here are the filings:

02/28/2011 - 86 - Letter from James G. Gilliland and Stewart Kellar [Joint] Re: Impoundment Issues. (Attachments: # 1 Exhibit 1-5)(Kellar, Stewart) (Filed on 2/28/2011) (Entered: 02/28/2011)

02/28/2011 - 87 - ORDER re: preliminary injunction (tfS, COURT STAFF) (Filed on 2/28/2011) (Entered: 02/28/2011)

03/01/2011 - 88 - Letter from Plaintiff Sony Computer Entertainment America LLC Re Third Party Jurisdictional Discovery. (Attachments: # 1 Exhibit A-E to Letter to Judge Joseph Spero)(Gilliland, James) (Filed on 3/1/2011) (Entered: 03/01/2011)

Update: More - Hotz has a new lawyer added to the team and the magistrate judge signs off on SCEA's letter request regarding the subpoenas:

03/03/2011 - 89 - NOTICE by George Hotz of Association of Counsel (Praetzellis, Jack) (Filed on 3/3/2011) (Entered: 03/03/2011)

03/03/2011 - 90 - ORDER re 88 Letter on Jurisdictional Discovery filed by Sony Computer Entertainment America LLC. Signed by Judge Joseph C. Spero on 3/3/11. (klhS, COURT STAFF) (Filed on 3/3/2011) (Entered: 03/03/2011)

So it's a go. Here's the relief the judge has now ordered:
Based on the foregoing, SCEA respectfully requests that the Court issue an order allowing SCEA to serve the third party subpoenas for targeted jurisdictional discovery as agreed upon by the parties and attached hereto as Exhibits A-E.
Update 2: Wired's David Kravetz has obtained the EFF letter [PDF].

And here is the joint letter about the impoundment issues as text:

************************

February 28, 2011

VIA HAND DELIVERY AND EMAIL
AT KAREN_HOM (at) CAND.USCOURTS.GOV

Magistrate Judge Joseph C. Spero
United States District Court
Northern District of California
Courtroom A, 15th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

Re: Sony Computer Entertainment America LLC v. Hotz, et al.,
Case No. C-11-00167 (JCS) SI (N.D. Cal)

Dear Judge Spero:

Plaintiff Sony Computer Entertainment America LLC ("SCEA") and Defendant George Hotz respectfully submit this joint letter regarding a dispute relating to impoundment of Mr. Hotz's storage devices and the protocol for compliance with Judge Illston's Impoundment Order of February 14, 2011 [Docket No. 79].

A. Background

Pursuant to the Court's Order, the parties and the third party neutral are directed to work together to develop a protocol for the isolation, segregation and removal of information on the storage devices related to the circumvention of the technological protection measures in the PlayStation®3 computer entertainment system ("PS3 System"). Moreover, this Court ordered that the costs and fees are to be split evenly between the parties. The parties jointly retained The Intelligence Group ("TIG") as the third party neutral, and Mr. Hotz delivered two hard drives and a calculator to TIG's facility in New Jersey for impoundment.

On February 25, 2011, at approximately 8:00 a.m., counsel for the parties participated in a conference call with TIG to discuss a protocol for "isolating, segregating and/or removing the information on those devices related to defendants circumvention of the technology protection measures in the PS3 system." The Court ordered date for the third party neutral to implement its protocol is today, February 28, 2011. The parties are unable to reach agreement on the impoundment protocol and have set forth their respective positions below.

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 2

B. Mr. Hotz's Position

1. The Impounded Drives Should Remain Impounded With The Neutral

Mr. Hotz's storage devices containing circumvention devices are already impounded with the neutral vendor, TIG. Throughout the impoundment protocol development, SCEA has attempted to turn impoundment into inspection. SCEA is not entitled to inspect the impounded drives under the impoundment order, nor is it allowed to create and preserve additional copies of the impounded drives, but this is precisely what it seeks to do.

Mr. Hotz proposes that the storage devices at issue, already impounded with TIG, remain impounded until the impoundment order is lifted or the Court otherwise directs. Having the drives remain impounded impounds the circumvention devices, and information related thereto which is the goal of the impoundment order. Further, having the drives remain impounded, and not searched or extracted, serves to truly preserve the drives as they existed at the time of impoundment. The drives have already been photographed and a chain of custody has been established by TIG at the time of impoundment. See Exhibit 3. In short Mr. Hotz requests the initial impoundment order under the TRO stand, which is in fact more broad than the modified impoundment order of Docket No 79. [See Docket No. 50].

TIG's process contemplates making a complete, backup copy of Mr. Hotz's storage devices. That backup would then be fully indexed and searched to find all impoundable material. Mr. Hotz did not have any concept of the highly invasive nature of this search procedure prior to Friday morning. Mr. Hotz objects to and does not consent to this invasive search and indexing proposed by the vendor. Further, counsel for SCEA has notified counsel for Mr. Hotz their intention to obtain an agreement or order to preserve those backup copies of Mr. Hotzs drives, something Mr. Hotz does not agree to.

The purpose of the isolation and removal aspect of the impoundment order was to allow Mr. Hotz to eventually have his property returned to him once the alleged circumvention devices were removed. Now that Mr. Hotz knows of the invasive form that the isolation and removal process will take, Mr. Hotz consents that in lieu of removal of the offending information and return of the hard drives, his hard drives may remain in the possession of the neutral until the Court orders otherwise. This was the initial scope of impoundment under the TRO. [Docket No. 50]

While Mr. Hotz would like his hard drives returned to him, in order to avoid the invasive search proposed by the vendor, he will agree that the hard drives will remain in the neutral's possession until the Court orders otherwise. Mr. Hotz also agrees to demonstrate to the third party neutral that the circumvention devices at issue are located on the impounded drives.

Counsel for Mr. Hotz presented this proposal to SCEA's counsel. It was rejected.

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 3

The purpose of an impoundment order, such as this, is to keep offending materials from the public. Leaving the hard drives in the neutral's custody, without having the neutral copying and indexing/searching the drives achieves the same result.

2. Impounded Drives Are Not Needed For Jurisdictional Discovery

SCEA argues that it has a need for jurisdictional discovery, and that it intends to seek an order to inspect the drives for jurisdictional evidence. SCEA's inspection demands relating to the impounded drives were withdrawn. [Docket No. 85, p. 9.] SCEA has not sought an order for inspection, and more importantly, SCEA has not obtained an order for inspection. Further, SCEA has no reason to believe the impounded drives contain any documents responsive to jurisdictional discovery. The joint letter does not state that Mr. Hotz requires the impounded drives to respond to jurisdictional discovery. [Docket No. 85 p. 5-6.] Having now reviewed the discovery requests propounded by SCEA, it is clear that the impounded drives are not necessary to respond to SCEA's jurisdictional discovery.

3. SCEA's Requested Relief Is Beyond The Scope This Letter Motion

SCEA's final paragraph of requested relief is beyond the scope of this letter motion. It seeks additional discovery from Mr. Hotz. The USB Drive from the Youtube video is irrelevant to this motion, and in any event was wiped prior to the litigation. Further, Mr. Hotz was already ordered to provide all storage devices, remote or otherwise, containing the circumvention devices to the neutral and has done so. An award of fees and costs for this motion is not appropriate.

4. Relief Requested By Mr. Hotz

Respectfully, Mr. Hotz requests that this Court modify its Order to state that the hard drive will remain impounded in the neutral's possession and that because the impounded drives are not being returned to Mr. Hotz, no creation and preservation of additional images of the drives need be performed and that no search or extraction there from is necessary.

C. SCEA's Position

At every turn, Mr. Hotz has attempted to avoid impoundment and the preservation of key evidence in this case. Initially, Mr. Hotz sought to avoid impoundment altogether. Then, he sought modification of the impoundment order, objecting on privacy grounds and complaining that he needed his computers promptly returned to him for his work. Judge Illston modified the impoundment order to address Mr. Hotz's concerns, referred the parties to this Court to work out the logistics, and required that the storage devices be returned to Mr. Hotz after segregation and removal of the information from the devices.

Specifically, Judge Illston ordered that Mr. Hotz's storage devices be delivered for the purpose of "isolating, segregating and/or removing the information on those devices related to defendants circumvention of the technology protection measures in the PS3 System" and returned to him after the infringing material has been removed. (Docket No. 79) In his latest

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 4

proposal to this Court, Mr. Hotz is attempting to yet again alter Judge Illston's modified impoundment order, one that he sought and is bound by.

This Court ordered the parties to select a third party neutral to determine and execute protocols for impoundment. Now, Mr. Hotz refuses to comply with Judge Illston's order or agree to the basic protocol necessary for impoundment and preservation of evidence. Mr. Hotz unequivocally objects to having his impounded devices imaged and properly analyzed by TIG, the third party neutral which he jointly selected. TIG has certified that it cannot proceed in the manner that Mr. Hotz requires because to do so would violate the basic standards of forensic analysis. See Exhibit 1 ("Second TIG Certification").

SCEA's objective here is two-fold: (1) To ensure that impoundment is completed in a forensically sound manner; and (2) To guarantee that the impounded storage devices which contain key evidence directly relevant to the issues of this case be preserved for the duration of the lawsuit. Mr. Hotz's vehement objections to this preservation are disconcerting to say the least.

1. Factual Background

SCEA's position on the impoundment protocol has been consistent and comports with basic forensic guidelines. SCEA requires that images of each impounded storage device in both the encrypted (as delivered to TIG) and decrypted forms be created and preserved by TIG. Imaging of the storage devices is standard forensic procedure. See Exhibit A to Exhibit 1 ("First TIG Certification"), ¶5, and Exhibit 1, ¶¶5-7;11-13. Mr. Hotz now refuses any such imaging, contending that the basic forensic analysis required here is "highly invasive."

Initially, during the parties teleconference with TIG, counsel for Mr. Hotz agreed to the imaging of the decrypted storage devices on the condition that any such images be "wiped" after the circumvention material had been segregated and removed from the original devices. He would not agree to any imaging of the encrypted storage devices as originally delivered to TIG. Counsel for SCEA disagreed, stating that images of the storage devices (both encrypted and decrypted) must be preserved for the duration of the lawsuit, not only to ensure the forensic integrity of the impoundment procedure, but also for evidentiary purposes and for any potential discovery permitted by the Court. Counsel for SCEA further explained that if the images are wiped after removal of the circumvention devices and data related thereto, no one, including Mr. Hotz, will have a forensically intact copy of his storage devices -- key evidence in this case -- as they originally existed. See Exhibit 2 (February 25, 2011 emails among counsel and TIG). Counsel for SCEA also directed the parties to the Court's evidentiary preservation requirements as set forth in the TRO and Preliminary Injunction. See id; Docket Nos. 50, 84.

Several hours after the teleconference, counsel for Mr. Hotz contacted counsel for SCEA to inform them that Mr. Hotz would not agree to any imaging of the storage devices. Instead, Mr. Hotz proposed that he go to TIG and decrypt the storage devices using the original devices,

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 5

his own computer and keyboard. Mr. Hotz offered to then show TIG the circumvention devices and data related thereto contained on the storage devices using his computer. Additionally, despite having previously represented to Judge Illston that he needed these devices for his work, Mr. Hotz now has offered to leave his storage devices with TIG for the duration of the lawsuit in an attempt to avoid the imaging of those devices.1 Mr. Hotz also proposes that he provide a declaration attesting that the impounded storage devices are the only storage devices that contain any devices or data relating to circumvention of the PS3 System.

In relation to its discussions with the parties, on February 26, 2011, TIG issued a certification regarding impoundment of the storage devices. See Exhibit A to Exhibit 1. Because Mr. Hotz's counsel would not agree to preservation (arguing that it was unnecessary for impoundment and only related to discovery), TIG did not include all preservation requirements in this certification. See Exhibit 1, ¶8; Exhibit 3 (February 26, 2011 email from TIG to counsel, noting that preservation requirements were the "norm" but not agreed upon by Mr. Hotz).

After Mr. Hotz refused to allow for any imaging of the storage devices, TIG issued a second certification on February 27, 2011 (Exhibit 1). This certification states in no uncertain terms that Mr. Hotz's proposal is unacceptable to TIG and violates basic forensic standards. Exhibit 1, ¶¶3-15. This certification also lays out TIG's procedures for the protocol and confirms the need to create images of both the encrypted and decrypted storage devices before any analysis can be conducted. See Exhibit 1, ¶¶5-8. In addition to the certification, TIG informed Mr. Hotzs counsel that, contrary to his statements, the ordered impoundment does require a forensic examination.2Exhibit 4 (February 26, 2011 email from TIG to counsel for Mr. Hotz).

2. The Creation and Preservation of Images Of The Storage Devices
Is Essential To The Proper Impoundment and Preservation of
Evidence

Proper impoundment and preservation protocols require that two images of both the encrypted and decrypted forms of Mr. Hotz's storage devices be created. The purpose of creating these images is to maintain one pristine copy and another to be used for analysis.

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 6

Indeed, as TIG explains: "Forensic examinations are never conducted on an original media, device or drive." See Exhibit A to Exhibit 1, ¶5; see also Exhibit 1, ¶15. This is so because any searches or access to data on the original storage devices can alter the evidence contained therein. Exhibit 1 at ¶11. This is also done in the event that the original hard drive fails during examination of the media; if that happens, no image will have been maintained ahead of time and the evidence is completely lost. It is thus essential that forensically sound copies be made at the outset to ensure that the authenticity of the evidence can be established later on. Simply put, imaging is necessary to prevent any spoliation of evidence.

Both TIG and SCEA require that images of the decrypted storage devices be taken prior to any analysis. Mr. Hotz refuses to agree to this imaging, stating that he will not perform the decryption necessary to allow TIG to image the storage devices, access their content, and perform the ordered impoundment. Exhibit 1 at ¶13. Accordingly, SCEA requests that this Court order: (1) the creation by TIG of two images of each of the decrypted storage devices in a forensically sound manner; (2) TIG to maintain in a secure vault for preservation purposes one of those images; and (3) Mr. Hotz to provide TIG the tools and keys necessary to decrypt the impounded storage devices and any protected files therein.

With respect to the original encrypted storage devices, TIG confirms that imaging is necessary for its use in the impoundment procedure and for the preservation of evidence. Exhibit 1, ¶6. In its recommended protocol, TIG intends to use an image of the encrypted storage device in the "un-encryption step." Id. However, TIG believes that it does not have the authority to make a second image of the encrypted storage device for the purpose of preserving relevant evidence because the impoundment order does not explicitly require it to do so. See Exhibit 1, ¶¶6-7; Exhibit 3. SCEA disagrees that TIG is prohibited from making the preservation copy. The duty to preserve evidence is explicitly required by Judge Illston in both the TRO and the Preliminary Injunction. See Docket Nos. 50 and 84. Moreover, if the removal of the circumvention devices and information related to circumvention occurs without an intact copy of each encrypted storage device, evidence of those devices as they originally existed will be permanently lost. Accordingly, SCEA requests that the Court order: (1) the creation by TIG of two images of each of the encrypted storage devices in a forensically sound manner; and (2) TIG to maintain in a secure vault for preservation purposes one of those images.

It is not clear why Mr. Hotz objects to the creation and preservation of the images. Counsel for Mr. Hotz has stated that the cost of imaging is only one consideration, but not the reason why Mr. Hotz is fighting the creation of images so vehemently. Mr. Hotz appears to be concerned that SCEA will somehow gain unfettered access to these images without permission. These concerns are wholly unfounded. The preserved images would be maintained in a safe and secure vault by TIG -- the third party neutral. SCEA would not have any access to the images until the Court orders it for discovery purposes. And SCEA has even proposed protocols, rejected by Mr. Hotz, to address privacy and privilege concerns. Moreover, when counsel for Mr. Hotz raised privacy and privilege issues with the Court during the second hearing on the

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 7

TRO, Judge Illston reminded counsel that, but for Mr. Hotz's conduct, this issue would not have arisen. Exhibit 5 (February 10, 2011 Hearing Transcript, 25:3-12).

In a further effort to accommodate Mr. Hotz's concerns about the imaging, TIG also proposed that it would maintain the images after impoundment is complete in a safe and secure location at its facility in New Jersey. Alternatively, TIG even offered that counsel for Mr. Hotz, as an officer of the court, could maintain the images until the Court decided what should be done with the images. Exhibit 1, ¶8. Counsel for SCEA agreed to both proposals. However, Mr. Hotz has rejected both proposals, maintaining the unreasonable and inexplicable position that no images can be made.

3. Mr. Hotz's Alternative Proposal Is Unacceptable to TIG and SCEA And Is
Contrary To Generally Accepted Forensic Protocol

Mr. Hotz's proposal is unacceptable. First and foremost, basic forensic evidence protocol dictates that images of the storage devices be made before any search or analysis is performed so that the storage device is preserved in its original form. Exhibit 1, ¶¶ 6-7, 11-13. By running searches for and accessing the circumvention devices on the storage devices, the evidence is altered as it existed when it was delivered to TIG. Id. at ¶¶11-14. Moreover, TIG states that it cannot use Mr. Hotz's computer to conduct its searches or analysis. Id. As a third party neutral, TIG must be able to independently verify that the infringing material is on the storage devices and determine whether any infringing material has been deleted or removed from the storage devices prior to their delivery to TIG. Id. at ¶11. Further, as part of its work to identify where the circumvention material resides, TIG must determine whether any infringing material is stored in any remote location.

As explained above, TIG must work off of a decrypted image of the storage device, not the original device. Mr. Hotz's proposal prevents this from happening. Furthermore, without images of the storage devices in their original form, TIG cannot know whether any tampering occurred after Mr. Hotz decrypted the storage devices. Exhibit 1, ¶11. Moreover, TIG will be unable to testify in court that its searches were conducted properly and completely. Id. at ¶15.

Mr. Hotz claims that neither the original impoundment order or his latest proposal require imaging. However, under either scenario, an examination of the storage devices is still necessary to verify the existence of the circumvention devices or information relating to the circumvention and to determine whether any such information has been deleted or transferred to other storage devices. Prior to conducting any of this analysis, imaging of the storage devices is required. Exhibit 1, ¶¶6-15.

4. SCEA's Need For Discovery

Another reason for imaging is the parties' discovery dispute, which was raised in their joint letter of February 18, 2011. Separate from the impoundment itself, SCEA intends to seek

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 8

the Court's permission to inspect these storage devices for jurisdictional evidence such as, for example, emails related to jurisdiction showing distribution of the circumvention devices to individuals in California; Mr. Hotz's use of the PlayStation Network ("PSN"), which contains a forum selection clause subjecting the user to jurisdiction in California; and any PS3 System materials distributed by SCEA, including, among other things, software development kits or any PS3 System instruction manuals, that would show Mr. Hotz's contacts with SCEA in California. Mr. Hotz has objected to any inspection of these devices for purposes of jurisdictional discovery. Counsel for Mr. Hotz now claims that the impounded storage devices "are not necessary to respond to SCEA's jurisdictional discovery." However, SCEA should not be forced to rely on Mr. Hotz's word and is entitled to examine the devices as set forth above.

Should the Court permit SCEA to inspect the storage devices for jurisdictional discovery, the parties can meet and confer on an inspection protocol to address any of Mr. Hotz's privilege or privacy concerns. Indeed, SCEA has already made some suggestions that would involve the third party neutral. Further, any costs or fees associated with the inspection of the images for discovery purposes will be incurred by SCEA, not Mr. Hotz. For now, until the Court has the opportunity to address the discovery disputes, SCEA simply requests that images be created and maintained so that relevant evidence can be preserved for the duration of the case. At a minimum, the Court should order that all potentially discoverable evidence -- even if it is the subject of the impoundment -- be preserved while the parties dispute is pending.

5. SCEA's Requested Relief

For the foregoing reasons, SCEA requests that the Court order that Mr. Hotz comply with TIG's recommended impoundment protocols and that those protocols be supplemented to ensure that preservation requirements are met as follows:

(1) TIG create and preserve two forensically sound images (e.g., bit stream images) of each impounded storage device in its encrypted form. One to be maintained by TIG in a secure vault for preservation purposes and the second to be used for decryption and/or any other necessary analysis by TIG;

(2) TIG create and preserve two forensically sound images (e.g., bit stream images) of each impounded storage device in its un-encrypted form. One to be maintained by TIG in a secure vault for preservation purposes and the second to be used for TIG's necessary analysis; and

(3) TIG maintain and preserve all of the forensically created images for the duration of the lawsuit.

SCEA further requests that the Court order Mr. Hotz to: (a) provide TIG with the tools and keys necessary to decrypt the impounded storage devices and the keys and passwords necessary to decrypt or unlock any protected files contained on the impounded storage devices;

Magistrate Judge Joseph C. Spero
February 28, 2011
Page 9

(b) identify for TIG all virtual machines or hard disks stored or at any time run on the impounded storage devices.3 Furthermore, to verify compliance with the impoundment order, SCEA requests that the Court order Mr. Hotz to provide a declaration setting forth: (i) verification that all storage devices on which any circumvention devices or any information relating to Mr. Hotzs circumvention of the technological protection measures in the PS3 System are stored have been delivered to TIG; (ii) why the storage device used by Mr. Hotz in the January 7, 2011 YouTube video entitled "Jailbroken PS3 3.55 with Homebrew" was not delivered to TIG for impoundment; and (iii) the identity of any remote storage of the circumvention devices or any information relating to Mr. Hotz's circumvention of the technological protection measures in the PS3 System.4 Finally, SCEA seeks fees and costs in relation to this motion.

Thank you very much for your time and consideration.

Respectfully submitted,

Kilpatrick Townsend & Stockton LLP
By: /s/ James G. Gilliland, Jr.
James G. Gilliland, Jr.
Counsel for Plaintiff Sony Computer
Entertainment America LLC
Stewart Kellar, E-ttorney at LawTM
By: /s/ Stewart Kellar Counsel for Defendant

Enclosures

1 Both TIG and SCEA independently offered to provide Mr. Hotz with the work related data on his storage devices. He rejected both offers.

2 TIG's Director of Forensics and Security specifically stated: "I am being tasked to search for, and locate data on a hard drive, even data that m[a]y have been deleted using standard forensic techniques. My review of the Court Order does not indicate that your client has sole responsibility to search for and 'point out' the Circumvention devices and supervise the deletion. Rather, it is my reading that I, as the independent third party, am responsible for making that determination and then removing the data from the original hard drive." See Exhibit 4.

3 Such virtual machines may contain information relating to Mr. Hotz's circumvention of the technological protection measures in the PS3 System, and thus should be identified for TIG to search.

4 Mr. Hotz agreed to provide such a declaration in his latest proposal on impoundment.


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