Perfect 10, Inc. v. Google, Inc.

Filing 37

Filed (ECF) Appellee Google, Inc. reply to response (, ,motion to strike portion or whole of document). Date of service: 12/28/2010. [7594607] (MMC)

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Perfect 10, Inc. v. Google, Inc. Doc. 37 No. 10-56316 IN THE FOR THE NINTH CIRCUIT PERFECT 10, INC., Plaintiff-Appellant, v. GOOGLE INC., Defendant-Appellee. On Appeal from the United States District Court For the Central District of California Hon. A. Howard Matz, District Judge DEFENDANT-APPELLEE'S REPLY IN SUPPORT OF ITS MOTION TO STRIKE QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller michaelzeller@quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Bradley R. Love bradlove@quinnemanuel.com 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Rachel Herrick Kassabian rachelkassabian@quinnemanuel.com Margret M. Caruso margretcaruso@quinnemanuel.com Andrea Pallios Roberts andreaproberts@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor Redwood Shores, California 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Attorneys for Defendant-Appellee GOOGLE INC. Dockets.Justia.com Perfect 10, Inc.'s ("P10") opposition to Google's motion to strike fails to justify P10's inappropriate inclusion of two tentative court orders (one of which Google has never even seen) and an order issued by a magistrate judge after the order on appeal as part of the Excerpts of Record. Rather, P10's Opposition largely argues the purported merits of P10's appeal--adding an additional 13 pages to the 84 pages (and 16,733 words) of its Opening Brief--and rests on erroneous legal arguments to justify its conduct. Because Google addressed the merits of the issues on appeal in its Response Brief, it will not rehash those arguments in this Reply. The nature of Google's motion to strike is procedural. It is brought not to prevent this Court's review of relevant material, but to enforce the Federal and Local Rules' prohibitions against P10's inclusion of tentative orders that were not even docketed by the district court and a discovery ruling issued by the magistrate that is not appealable and postdates the district court's rulings at issue here. The Amazon Tentative Order. P10 claims that ER10097-98 is a portion of an unpublished, and undocketed, tentative order in the Amazon litigation. P10 Opp. at 10. At P10's own request, it was never issued as a final order following settlement by the parties who briefed the motion leading to the tentative order. Id., n.8; Declaration of Bradley R. Love ("Love Decl."), filed concurrently, Ex. 1 (2/22/2010 Hearing Transcript in Amazon litigation at 3:12-4:12). Although P10 is 1 correct that the Amazon litigation was consolidated with the case below, Google was not a party to the motion that led to the tentative order, did not participate in the briefing or the hearing for that motion, and never received a copy of the tentative order. Id. at 2, 5:19-21. Further, P10 did not include the entirety of that single-spaced, 34-page tentative order in its Excerpts of Record. Id. at 3:13-18. As such, Google has still never seen the whole of that order and, neither it, nor this Court, has the ability to assess the two pages P10 selected in the context of the whole draft opinion, or even verify that the two pages are accurate copies. This failure alone makes P10's inclusion of these two pages improper. P10's other arguments for including two pages from a tentative order addressing a motion it brought against a third party also fail. This Court's Rules, which allow the record to include an "opinion, findings of fact or conclusions of law relating to the judgment or order appealed from" (Cir. R. 30-1.4(a)(iv)), do not permit the inclusion of the Amazon tentative order. That undocketed, tentative order does not provide opinions, findings, or conclusions referred to or relied upon within the appealed order denying P10's Second PI Motion; it was neither referenced in the district court's orders on appeal nor litigated by the parties to this appeal. P10 cites no authority suggesting the Circuit Rule encompasses tentative orders, but relies instead on an expansive reading of the word "related." P10 Opposition at 1-2. However, P10's proposed interpretation contravenes Circuit 2 Rule 10-2, which limits the record on appeal to (a) "the official transcript of oral proceedings before the district court" and (b) "the district court clerk's record of original pleadings, exhibits and other papers filed with the district court." The tentative rulings do not fit either of these categories. And if P10's interpretation of Circuit Rule 30-1.4(a)(iv) were correct, any tentative, provisional or otherwise non-final ruling, by any court, at any time, could be interjected into the record for the first time on appeal. P10's reliance on Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir. 1982), is similarly flawed. P10 Opp. at 2-4. In Townsend, the documents at issue "were physically in the courtroom at the argument, were referred to and relied on [as evidence] by both sides in that argument, were the basis of the opinion dictated by the court at the end of the argument," and were omitted from the original record by "error or accident." Id. at 848-849. They were also the subject of an order by the district court pursuant to Fed. R. App. P. 10(e) directing that the documents be included in the record on appeal. Id. In contrast, the Amazon tentative order was (1) not the subject of a Rule 10(e) order, (2) not accidentally omitted from the record, (3) not relied upon as evidence by the district court or the parties in briefing the motion at issue, and (4) not discussed at the hearing in this case. Moreover, because the Amazon tentative order was not filed or provided to Google, it cannot be properly characterized as being part of "what actually happened," id. at 849, 3 before the district court on P10's Second PI Motion against Google. Cf. P10 Opp. at 10. Townsend is consistent with this Court's admonition that "[o]nly the court may supplement the record" and "[l]itigants should proceed by motion or formal request" to include items not actually in the record below. Lowry v. Barnhart, 329 F.3d 1019, 1024-25 (9th Cir. 2003) (striking improper "unilateral supplementation of the record"). P10's inclusion of a tentative ruling from a different case is not.1 As a matter of policy, tentative orders should not be part of the Excerpts of Record. A tentative order is not binding on anyone. Thomas v. Housing Authority of Los Angeles, 2005 WL 6133692, *1 (C.D. Cal. June 3, 2005) ("tentative order binds neither the court nor the parties"). Rather, tentative orders allow parties to target their oral argument to the issues of interest to the court, and for the court to test its conclusions knowing that the parties have the opportunity to persuade the P10's argument that its alleged excerpts from the Amazon tentative order have become part of the record because P10 discussed it in its unsolicited, improper "Response" to the tentative summary judgment order also fails. P10 Opposition at 2, 10. P10's "Response" was attached to a declaration filed after the appealed order issued. ER100114-100118; ER20016-20064 (August 1, 2010 Declaration of J. Mausner); SER1-26 (July 30, 2010 Order Denying Preliminary Injunction Motion); Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) ("Papers submitted to the district court after the ruling that is challenged on appeal should be stricken from the record on appeal"). Having been presented to the district court without notice or the opportunity for Google to provide a written reply, P10's "Response" was a legal nullity. E.g., U.S. District Court for the Central District of California, Local Rule 7-10 ("Absent prior written order of the Court, the opposing party shall not file a response to the reply"). P10 cites no authority to the contrary. 4 1 court otherwise. Use of tentative orders as an argument for overturning final rulings would likely chill district courts' use of tentative orders. Further, permitting the record on appeal to include anything referenced in a sur-reply filed after an order issues would thwart the Rules of Civil and Appellate Procedure, as well as the principles of notice and fairness those rules were designed to promote. Kirshner, 842 F.2d at 1077 (striking contested portions of Excerpts of Record which "were neither filed with the district court, considered by the court, nor even before the court when it entered the order . . . on appeal"); Lowry, 329 F.3d at 1024 (striking portion of Excerpts of Record not in the district court's docket and imposing sanctions because limitations of Fed. R. App. P. 10(a) are "fundamental" and only documents "filed in the district court ... ensure that both opposing counsel and the district court are aware of it at a time when disputes over authenticity can be properly resolved"). The tentative Amazon order should be stricken from the Excerpts of Record. The Tentative Summary Judgment Order. P10 concedes that the district court explicitly stated ER10063-87 is a draft, tentative summary judgment order and fails to justify its inclusion in the Excerpts of Record. Its assertion that the district court intended to allow the parties to cite to the tentative after it issued a superseding final order is not logical. P10 Opposition at 9-10. The district court's admonition during the summary judgment argument that the tentative order "is not 5 to be distributed or used for any purpose until I issue a final order" was plainly intended to bar use of the tentative order to the extent it was not incorporated into the final order. The district court specifically instructed the parties to return the tentative order to the court. SER 61 (5/10/10 Hearing Transcript at 4:19-20) ("At the end of this hearing, make sure that you return that order to Mr. Montes."). The district court would not have instructed the parties to turn in their copies of the tentative order if it intended the tentative order (in its tentative order format) ever to be used for any purpose. P10's other arguments are unavailing for the same reasons discussed above regarding the Amazon tentative order. Specifically, it is not "opinion, findings of fact or conclusions of law relating to the judgment or order appealed from" under Circuit Rule 30-1.4(a)(iv) any more than internal drafts of the order; rather, it was superseded by the final, docketed "opinion, findings of fact or conclusions of law relating to the judgment or order appealed from." See Cir. R. 10-2. Like the Amazon tentative, it is distinguishable from the evidence at issue in Townsend that was properly before the district court but erroneously omitted from the record and later ordered by the district court to be included in the record. Townsend, 667 F.2d at 848-849. And, as discussed above (n.1), the "Response" that referenced this tentative order was improperly filed after the appealed order issued. See Kirshner, 842 F.2d at 1077; Lowry, 329 F.3d at 1024. Additionally, that the tentative order is 6 referenced in the transcript of the summary judgment hearing does not warrant its inclusion in the Excerpts. If it did, tentative orders--which are not final or As discussed above, this is binding--would always be part of the record. inconsistent with practice and sound policy. Accordingly, the tentative summary judgment order should be stricken. Discovery Order. P10 does not explain how its inclusion of a discovery order issued by a magistrate judge after the order on appeal (and after the partial summary judgment ruling) could appropriately be part of the appeal record, particularly given that it is subject to review by the district court and thus not even final. ER100114-100118; Love Decl., Ex. 2 (9/2/2010 Order granting Google leave to re-file objections to ER20001-03 "following the conclusion of Perfect 10's appeal"). Nor does P10 answer Google's cited authority precluding the inclusion of such material. Kirshner, 842 F.2d at 1077 (record on appeal is limited to "the record before the trial judge when his decision was made"); ER100114-100118; see also Circuit Rule 10-2 (setting forth contents of appeal record). Contrary to P10's arguments (Opp. at 1-2), this discovery order is not "opinion, findings of fact or conclusions of law relating to the judgment or order appealed from" under Circuit Rule 30-1.4(a)(iv). Kirshner, 842 F.2d at 1077; ER100114-100118. Although the order references arguments raised in P10's summary judgment papers below, it could not have been considered by the district 7 court in ruling on either P10's Second PI Motion or Google's partial summary judgment motions because the magistrate's order did not exist until after those two orders were issued. P10's implication that after-the-fact orders (which do not address the validity of an appealed order) can "relate to" an appealed order for record purposes defies logic. The discovery ruling denying Google's motion for a protective order should be stricken. Conclusion For the foregoing reasons, Google respectfully requests this Court strike ER10063-87, ER10097-98, and ER20001-03 from P10's Excerpts and all references thereto within P10's Opening Brief. Dated: December 28, 2010 Respectfully submitted, By /s/ Margret M. Caruso Margret M. Caruso QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Defendant Google Inc. 8 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE --- PERFECT 10, INC., A CALIFORNIA CORPORATION, ) ) ) PLAINTIFF, ) ) vs. ) No. CV05-4753-AHM(SHx) ) AMAZON.COM, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________) REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, FEBRUARY 22, 2010 _____________________________________ CINDY L. NIRENBERG, CSR 5059 U.S. Official Court Reporter 312 North Spring Street, #438 Los Angeles, California 90012 www.cindynirenberg.com UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA APPEARANCES OF COUNSEL: FOR THE PLAINTIFF: MAUSNER IP LAW BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91367 310-617-8100 FOR THE DEFENDANTS AMAZON.COM, A9.COM AND ALEXA INTERNET: TOWNSEND & TOWNSEND & CREW BY: ANTHONY J. MALUTTA, ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CA 94111 415-576-0200 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: LOS ANGELES, CALIFORNIA; MONDAY, FEBRUARY 22, 2010 4:00 P.M. ----Calling Item Number 11, CV05-4753, Perfect 10, Inc. versus Amazon.com, Inc. Counsel, state your appearances, please. MR. MAUSNER: Mausner for Perfect 10. THE COURT: MR. MALUTTA: Good afternoon. Good afternoon, Your Honor. Anthony Good afternoon, Your Honor. Jeff Malutta for amazon.com, Alexa Internet and A9.com. THE COURT: Okay. Please be seated. I thought we were here for argument and final ruling on Perfect 10's motions for the summary adjudication. record reflect that I communicated a draft, a 34-page, single-spaced order. It went out on Friday, and I learned a Let the few minutes ago that the parties apparently reached a settlement. Is that correct, Mr. Mausner? MR. MAUSNER: THE COURT: Yes, Your Honor. Well, why don't you please proceed to the lectern and tell me what's going on. MR. MAUSNER: A9 and Alexa. THE COURT: Okay. Has the settlement been We have settled the case with Amazon, UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard? MR. MALUTTA: No, Your Honor, other than to agree consummated in writing? MR. MAUSNER: written settlement. THE COURT: There are e-mails. We don't have a It was just done today. All right. Well, I congratulate the That's very commendable and, parties on reaching an agreement. of course, reassuring to the Court. I take it you don't want this order filed? MR. MAUSNER: THE COURT: MR. MAUSNER: That's correct. Is that a condition of the settlement? I think it is. It's not -- we discussed the fact that we would ask the Court that the motion not go forward and that it be -- and not be finalized, yes. THE COURT: Okay. Mr. Malutta, do you wish to be with Mr. Mausner that there is a settlement in place. THE COURT: MR. MALUTTA: settlement in place. THE COURT: All right. Well, so the way I had Say what? You agree with what? With Mr. Mausner that there is a approached this with the deal on this one, I know, of course, that there was some basically counter-motions for Alexa. I'm going to deny those as moot so that we have a docket sheet that reflects a ruling on that. That's a technicality that has to do with court UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reporting purposes. And I will deny this motion as moot, but without a -just have minutes reflecting that I won't file this order, and we will see what happens. That just leaves Google, right? MR. MAUSNER: not settled. THE COURT: Okay. Now, is there anything that I have That's correct, Your Honor. Google has under submission in the Google case, me, as opposed to Judge Hillman? MR. MAUSNER: Yes, Your Honor. Google has filed There are three motions for summary judgment regarding DMCA. disputes regarding whether all documents related to that have been produced. We made a motion for sanctions regarding that which was referred to Judge Hillman, and that's pending before Judge Hillman, the documents part of that. motions are before Your Honor, but -THE COURT: Well, let me just ask you this -- it's a The summary judgment little unfair to Google's lawyer, but they can get a copy of the transcript; I am not going to get into any of the merits -but with so much activity before Judge Hillman, the summary judgment motions that Perfect 10 brought, have those been opposed and replies filed as well? MR. MAUSNER: They're ready for a ruling? The motions that Google brought are UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quickly. MR. MALUTTA: MR. MAUSNER: THE COURT: Ten days? Well, yeah. I'll give you two weeks from today. fully briefed, but there's an issue regarding whether Google had produced all the documents relevant to those motions, so that's what's before Judge Hillman. THE COURT: And then Perfect 10 -- It makes sense for me to wait, then, until Judge Hillman rules and whether there is any appeal from whatever he rules. MR. MAUSNER: Correct. Perfect 10 also filed a motion for summary judgment which Your Honor stayed until Google's motions are decided. THE COURT: Okay. I think that takes care of it. Hold on a minute, please. (The Court and clerk confer off the record.) THE COURT: active calendar. We're going to take this case off the You can file your notice of dismissal when you file it, but for the purpose of reporting and recording on our extremely burdened calendar, this case is going to be removed from the active calendar. MR. MAUSNER: us to get the dismissal. THE COURT: MR. MAUSNER: Meaning a week? I don't know if we can do it that Okay. It shouldn't take too long for UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA MR. MALUTTA: MR. MAUSNER: THE COURT: Thank you, Your Honor. Thank you. All right. We're adjourned. (Proceedings concluded.) --oOo-- 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA CERTIFICATE I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. Date: MARCH 8, 2010 _________________________________ Cindy L. Nirenberg, CSR No. 5059 Case -09484-AHM-SH pocumer^t 986 t=iled 09/02/10 Page 1 of 2 Page ID #:19398 1 2 3 4 5 6 7 8 9 1Q 11 12 13 14 15 16 17 18 19 vs. GOGGLE INC. a corporation; and DOES 1 throug^i 100, inclusive, PERFECT 10, INC., a California corporation, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx} ORDER REMOVING THE HEARING ON GOGGLE INC.' S MOTION FOR REVIEW OF MAGISTRATE JUDGE HILLMAN'S AUGUST 10 ZOIO ORDER FROM THE COURT'S CALENDAR AND GRANTING GOGGLE LEAVE TO RE-FILE THE MOTION AFTER THE STAY IS LIFTED Plaintiff, Defendants. AND COUNTERCLAIM 2a 21 22 23 24 25 26 27 28 41980 . 5132013555537.1 Case No. CV D4-9484 AHM (SHx) ORDER REMOVING THE HEARING ON GOOGLE'S MOTION FOR REVIEW OF THE 8/IO/Ifl ORDER FROM THE COURT'S CALENDAR AND GRANTING GOGGLE LEAVE TO RE-FILE Case 2: 84-AHM-SH Document 9S6 Filed 09/02/10 Page 2 of 2 Page ID #:19399 1 2 Order WHEREAS, Google, on August 24, 2010, filed its Motion for Review of and 3 ^ Objections to Magistrate Hillman's Order of August 10, 2010 on Google's Motian to 4 ^ Quash Subpoenas to Shantal Rands Poovala (Dkt. No. 976) ("Objections"}; 5 WHEREAS, this Court, by its August 25, 2010 Order (Dkt. No. 978}, stayed 6 ^ all proceedings except those matters directly related to Perfect 10's appeal of the 7 ^ Court's July 30, 2010 Order until the Ninth Circuit issues a decision on that appeal; 8 WHEREAS, this Court's August 25, 2010 Order also extended the deadline 9 for Google to file a motion for review of Magistrate Hillman's August 10, 2010 10 Order until fourteen days after the lifting of the stay following the conclusion of 11 12 13 14 15 16 Perfect 10's appeal; WHEREAS the hearing on Google's Objections is currently set for October 4, 2010 at 10:00 a.m. before this Court; WHEREAS, the parties agree that briefing and argument on Google's Objections should take place after the stay is lifted; ACCORDINGLY, PURSUANT TO THE PARTIES' STIPULAT10N,1T 1S 17 HEREBY ORDERED AS FOLLOWS: 18 1. The October 4, 2010 hearing on Google's Objections is taken off the 19 Court' s calendar ( vacated}, and 2a 2. Google is granted leave to re-file a motion for review of Magistrate 21 Hillman's August 10, 2010 Order fourteen {14) days after the lifting of the current 22 stay following the conclusion of Perfect 10's appeal, consistent with this Court's 23 August 25, 2010 Order. 24 IT IS SO ORDERED. 2S DATED: September 02, 2010 26 27 28 01984 .5132013655537. i A. Howard Matz United States District Judge Case No. CV 44-9484 AHM (SHx) _ ORDER REMOVING THE HEARING ON GOOGLE'S OTION FOR REVIEW OF THE 8110110 ORDER FROM THE COURT'S CALENDAR AND GRANTING GOOGI.E LEAVE TO RE-FILE CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 28, 2010. DEFENDANT-APPELLEE'S REPLY IN SUPPORT OF ITS MOTION TO STRIKE DECLARATION OF BRADLEY R. LOVE IN SUPPORT OF DEFENDANTAPPELLEE'S MOTION TO STRIKE AND EXHIBITS 1-2 THERETO I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: December 28, 2010 By /s/ Margret M. Caruso Margret M. Caruso QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Defendant Google Inc.

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