The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
GOOGLE LLC, :
: 21cv10260 (DLC)
Plaintiff, :
: ORDER
-v- :
:
DIMTRY STAROVIKOV, ALEXANDER FILIPPOV, :
and DOES 1-15, :
:
Defendants. :
:
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DENISE COTE, District Judge:
In March 1, this Court held a conference to discuss the
defendants’ intended motion to vacate the entry of default
against them. At the conference, the defendants represented
that they would be willing to submit to the Court’s personal
jurisdiction if the plaintiff vacated the entry of default
against them. Google did not consent to vacate the entry of
default.
In their motion to vacate the entry of default, however,
the defendants stated that they would be unable to come to the
United States because many countries have banned Russian flights
from using their airspace. In its Opinion of April 27, this
Court vacated the default. In doing so, the Court noted that
the defendants had not shown that they would be unable to travel
to a country outside Russia. Google LLC v. Starovikov, No.
21CV10260, 2022 WL 1239656, at *5 (S.D.N.Y. Apr. 27, 2022).
At the initial pretrial conference held on June 1, a
schedule was set for discovery. The parties had agreed to
proceed with two tranches of fact discovery in which the two
defendants would each be deposed twice. The first tranche would
be principally addressed to the identification of John Doe
defendants. The parties agreed to a discovery schedule in which
the defendants would first be deposed by the end of July.
During the June 1 conference, Google stated its intention
to depose the defendants in the United States. The defendants
again stated that they could not be deposed in the United States
due to bans on Russian air traffic, and added that they would be
unable to secure a visa to travel to the United States. The
plaintiff represented that it had provided the defendants with
at least two alternative countries at which the defendants could
be deposed, but the defendants had not agreed to either
location. The defendants insisted, however, that if there were
a way for them to appear in the United States at trial, they
would be willing to do so.
The parties were ordered to provide the Court with a letter
by June 3 either stating the location at which the defendants
would be deposed or explaining why the parties could not reach
an agreement as to the location. On June 3, the parties
submitted letters explaining that they had failed to reach an
agreement as to the country in which the defendants would be
deposed. In the defendants’ letters, the defendants stated that
they could only be deposed in Russia, Kazakhstan, or Belarus
because they lacked international passports, which would take
several months to obtain. This was the first indication to the
Court that the defendants lacked international passports and had
not yet applied for them. The defendants also expressed concern
over traveling to countries from which they could be extradited.
The plaintiff represents that defense counsel advised Google
following the June 3 conference that the defendants were
unwilling to travel to any country from which they may be
extradited.
Attached to the plaintiff’s June 3 submission is a
transcript of a 2020 interview of defense counsel that can be
found on YouTube. In that interview, defense counsel describes
steps that hackers should take to avoid international
prosecution.
Based on the proceedings to date there is reason to believe
that the defendants appeared before this Court and moved to
vacate their default to obtain discovery of Google’s
investigation of their activities and to learn whether they
could circumvent the steps Google has taken to block the malware
described in its complaint. There is also reason to believe
that the defendants will not participate in good faith in the
discovery process and that their counsel has not been candid
with the Court. To defend this action, the defendants must be
willing to submit to examination in the United States, both
before trial and at trial. Accordingly, it is hereby
ORDERED that the pretrial scheduling Order of June 1 is
vacated and all discovery of the plaintiff is stayed.
TT IS FURTHER ORDERED that the defendants shall comply with
their Rule 26(a) (1), Fed. R. Civ. P., initial disclosure
obligations by June 17, 2022,
TT TS FURTHER ORDERED that the plaintiff shall submit a
letter by June 10, 2022 providing three countries in Europe at
which they would be willing and able to depose the defendants
during the first tranche of fact discovery. The defendants
shall advise the Court by June 14, 2022 whether they will submit
to a deposition in one of those three countries and shall
proceed diligently to make the necessary arrangements to do so
by the end of July.
SO ORDERED:
Dated: New York, New York
June 9, 2022
United States District Judge