Opinion

Google LLC v. Dmitry Starovikov

Court
District Court, S.D. New York
Filed
Jun 9, 2022
Cited by
0 cases

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------X

:

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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