Perfect 10 Inc v. Google Inc et al

Filing 322

TRANSCRIPT for proceedings held on 7-14-08 1:27p.m.. Court Reporter/Electronic Court Recorder: Babykin CourtHouse Services, phone number 626-963-0566. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/12/2008. Redacted Transcript Deadline set for 8/22/2008. Release of Transcript Restriction set for 10/20/2008. (bem, )

Perfect 10 Inc v. Google Inc et al

Doc. 322

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 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED; COURT SMART SANDRA BUTLER DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA [phone] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PERFECT 10, INC.,

) ) PLAINTIFF, ) ) VS. ) ) ) GOOGLE, INC., ET AL., ) ) ) DEFENDANTS. ) ______________________________)

CASE NO. CV 04-9484-AHM(SHX) LOS ANGELES, CALIFORNIA JULY 14, 2008 (1:27 P.M. TO 1:54 P.M.)

HEARING BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

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Dockets.Justia.com

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 APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CALIFORNIA 91367 FOR THE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: RACHEL M. HERRICK ATTORNEY AT LAW 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CALIFORNIA QUINN EMANUEL URQUHART OLIVER & HEDGES BY: TOM NOLAN ATTORNEY AT LAW 865 S. FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA

94065

90017

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 INDEX CASE NO. CV 04-9484-AHM(SHX) PROCEEDINGS: CONFERENCE.

JULY 14, 2008

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 TIME FOR? MS. HERRICK: THE COURT: MAY I TAKE THE PODIUM, YOUR HONOR? RECORD. MS. HERRICK: RACHEL HERRICK AND THOMAS NOLAN OF LOS ANGELES, CALIFORNIA; MONDAY, JULY 14, 2008, 1:27 P.M. THE CLERK: 10 VERSUS GOOGLE. COUNSEL, PLEASE ENTER YOUR APPEARANCE FOR THE CALLING CASE NUMBER CV 04-9484, PERFECT

QUINN EMANUEL FOR DEFENDANT GOOGLE. THE COURT: THANK YOU. GOOD AFTERNOON, YOUR HONOR. JEFF

MR. MAUSNER: MAUSNER FOR PERFECT 10. THE COURT:

WHAT WERE YOU BEFORE JUDGE MATZ ON WAS THAT A MOTION TO AMEND, OR? YES. AND WHAT DO YOU NEED MY PRECIOUS

TODAY? -- JUST BRIEFLY. MS. HERRICK: THE COURT:

OKAY.

SURE. WE ARE HERE -- I'M HERE -- WE'RE HERE

MS. HERRICK:

ON A VERY LIMITED MATTER THAT SHOULDN'T TAKE MORE THAN ABOUT FIVE OR TEN MINUTES I'M HOPING. THIS RELATES TO SOME

DOCUMENTS THAT GOOGLE -- SOME CATEGORIES OF DOCUMENTS THAT GOOGLE HAS RECENTLY PRODUCED AND IS ABOUT TO PRODUCE PURSUANT TO DISCOVERY REQUESTS AND COURT ORDERS. AS YOUR HONOR I'M SURE RECALLS, ON DECEMBER 27TH, 2005 YOUR HONOR ISSUED AN ORDER IN RESPONSE TO A GOOGLE

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 MOTION TO LIMIT ACCESS TO CERTAIN MATERIALS TO A TRUE ATTORNEY'S-EYES-ONLY DESIGNATION. YOUR HONOR DENIED THAT

REQUEST BUT DID GRANT GOOGLE LEAVE TO COME BACK TO YOUR HONOR TO REVISIT THE ISSUE -- AND I'M QUOTING HERE -"ON A VERY LIMITED BASIS WHEN AND IF THERE ARE BUSINESS AND TECHNOLOGICAL TRADE SECRETS ABOUT TO BE DISCLOSED, WHICH SECRETS DEFENDANTS BELIEVE ARE CURRENTLY SO COMMERCIALLY SENSITIVE THAT PARTIAL RECONSIDERATION OF THE PROTECTIVE ORDER IS JUSTIFIED." THE COURT: BEEN AWHILE. OKAY. AND, SO, WHAT HAPPENED HERE IS ON I HAVE SOME MEMORY OF THAT, BUT IT'S

MS. HERRICK:

APRIL 29TH, 2008 GOOGLE GAVE PERFECT 10 NOTICE THAT IT BELIEVED IT WAS ABOUT TO PRODUCE CERTAIN LIMITED CATEGORIES OF DOCUMENTS THAT WOULD RISE TO THE LEVEL OF THE NEED TO SEEK RECONSIDERATION BECAUSE GOOGLE BELIEVED THESE WERE SO SENSITIVE THAT A TRUE AEO DESIGNATION WAS WARRANTED FOR THEM. OF COURSE, UNDERSTANDABLY, PERFECT 10 DISAGREED. BUT THEY DID IN FACT AGREE IN WRITING ON A TEMPORARY BASIS TO MAINTAIN A TRUE OUTSIDE COUNSEL'S ONLY DESIGNATION, WHICH I'M CALLING OCEO -THE COURT: MM-HMM. -- RATHER THAN AEO, SINCE AEO

MS. HERRICK:

CURRENTLY INCLUDES DR. ZADA -- FOR TWO NARROW CATEGORIES OF

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 DOCUMENTS ON A TEMPORARY BASIS UNTIL WE WERE ABLE TO COME BACK TO YOUR HONOR AND DISCUSS THE ISSUE. AND THOSE TWO CATEGORIES ARE, NUMBER ONE, DOCUMENTS REGARDING TOTAL SEARCH COUNTS RUN ON GOOGLE, AND, NUMBER TWO -MR. MAUSNER: RACHEL, SOMEONE WHO'S DOING AN IF YOU'RE

INTERNSHIP IN MY OFFICE IS PRESENT IN THE COURT.

GOING TO BRING UP ANYTHING THAT IS CONFIDENTIAL, SHE CAN JUST GO OUT IN THE HALL FOR A SECOND. MS. HERRICK: I APPRECIATE THAT. THANK YOU. I'LL

AVOID THAT IF AT ALL POSSIBLE. THE COURT: RUN ON GOOGLE? MS. HERRICK: THE COURT: USERS. CORRECT. SO, THE TOTAL SEARCH COUNTS RUN BY --

OKAY.

YOU MEAN --

MS. HERRICK:

AND, SECONDLY --

THE COURT: -- GLOBAL TOTAL NOT PERFECT 10 SEARCHES OR MODEL SEARCHES? MS. HERRICK: BOTH. ANY ACTUAL CONCRETE NUMBERS OF

SEARCHES RUN, TOTAL SEARCHES RUN ON INDIVIDUAL TERMS AND COLLECTIVELY. THERE ARE DOCUMENTS THAT HAVE BEEN CALLED FOR

THAT HAVE BEEN ORDERED PRODUCED THAT WOULD REQUIRE GOOGLE TO DISCLOSE THAT INFORMATION. THE COURT: OKAY. THE SECOND CATEGORY ARE DOCUMENTS

MS. HERRICK:

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 TOO. AND SO ON APRIL 30TH, THE VERY NEXT DAY, PERFECT 10 AGREED IN WRITING, YOU KNOW, JUST TO MAINTAIN THIS OCEO STATUS ON A TEMPORARY BASIS FOR THESE TWO CATEGORIES OF DOCUMENTS. WE HAVE ANOTHER PRODUCTION COMING UP IN GOOGLE ON THING. MS. HERRICK: I THINK WE ARE TOO. I THINK WE ARE THING. MS. HERRICK: THE COURT: IT WAS NUMBER 196 I BELIEVE. REGARDING IMAGE RECOGNITION TECHNOLOGY. THE COURT: SO --

YOU MEAN THE FEASIBILITY OF IMAGE

RECOGNITION TECHNOLOGY? MS. HERRICK: JUST DOCUMENTS -- I BELIEVE THE ORDER

WAS DOCUMENTS REGARDING GOOGLE'S, I THINK IT WAS, USE OF IMAGE RECOGNITION TECHNOLOGY WITH THE AVAILABILITY OF SUCH TECHNOLOGY WITHIN GOOGLE. THE COURT: I THINK IT WAS FEASIBILITY OF STUDIES

OF FEASIBILITY OR SOMETHING LIKE THAT. MS. HERRICK: EXACT WORDING -THE COURT: I THINK WE'RE TALKING ABOUT THE SAME YOU KNOW, I WISH I COULD REMEMBER THE

GOT IT. ANYWAY --

MS. HERRICK: THE COURT:

I THINK WE'RE TALKING ABOUT THE SAME

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 WEDNESDAY, THIS WEDNESDAY, JULY 16TH. AND THE DATE IS SET

PURSUANT TO COURT ORDER AND THE PARTIES' STIPULATIONS EXTENDING DUE DATES THEREON. WE NOTIFIED PERFECT 10 ON JULY 8TH, LAST WEEK, THAT WE ASSUMED THAT PERFECT 10 WOULD CERTAINLY EXTEND ITS AGREEMENT, ITS PRIOR AGREEMENT TO TREAT ANY SUCH CATEGORIES OF DOCUMENTS AS OCEO ON A TEMPORARY BASIS, THAT WE ASSUMED THAT THEY WOULD EXTEND THAT AGREEMENT TO ANY ADDITIONAL DOCUMENTS PRODUCED ON JULY 16TH. WE JUST SENT THEM AN EMAIL ASKING IF THEY COULD CONFIRM THAT THAT WAS THE CASE. 10 REFUSED. FOR REASONS UNKNOWN, PERFECT

SO, EVEN THOUGH WE ALREADY HAVE THIS AGREEMENT,

WE'RE TEEING UP THIS ISSUE TO BRING IT BEFORE YOUR HONOR, WE'RE NOW KIND OF IN A CATCH 22 BECAUSE GOOGLE NEEDS TO MAKE THIS PRODUCTION ON WEDNESDAY TO SATISFY A COURT ORDER, BUT PERFECT 10 IS REFUSING TO MAINTAIN A TEMPORARY STATUS QUO OF OCEO PENDING OUR ABILITY TO COME BEFORE YOUR HONOR IN FAIRLY SHORT ORDER AND PRESENT THE ISSUE FOR YOUR HONOR'S DISPOSITION. SO -AND WAS IT MY PRODUCTION DEADLINE OR

THE COURT: JUDGE MATZ'S OR --

MS. HERRICK:

JUDGE MATZ, YES.

AND, SO, ALL WE'RE ASKING TODAY -- WE'RE NOT -- YOU KNOW, THE ISSUE IS NOT RIPE FOR YOUR HONOR. THE PARTIES NEED

TO SUBMIT SOMETHING OBVIOUSLY IN VERY SHORT ORDER.

9 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 BUT ALL WE'RE ASKING TODAY IS A VERY LIMITED MAINTENANCE OF THE STATUS QUO FOR ONE TO TWO WEEKS JUST TO GIVE THE PARTIES TIME TO PUT TOGETHER A QUICK JOINT STIPULATION. THE COURT: I UNDERSTAND. WE CAN SUBMIT OUR EVIDENCE OF

MS. HERRICK:

CONFIDENTIAL AND PROPRIETARY AND -- YOU KNOW, THE BURNING NEED THAT WE HAVE TO KEEP THESE DOCUMENTS AS CONFIDENTIAL AS POSSIBLE. RULE. THE COURT: OKAY. GOT IT. PERFECT 10 CAN OPPOSE THAT, AND YOUR HONOR CAN

MS. HERRICK: THE COURT:

THANK YOU.

THANK YOU. THE MOTION THAT THEY'RE PROPOSING TO

MR. MAUSNER:

MAKE TO MAKE IT SO THAT DR. ZADA CANNOT SEE THESE DOCUMENTS IS COMPLETELY IMPROPER. THE MATTER WAS ALREADY LITIGATED AND YOUR HONOR DECIDED THAT DR. ZADA

DECIDED IN THIS VERY CASE.

SHOULD BE ABLE TO SEE BOTH CONFIDENTIAL AND HIGHLY CONFIDENTIAL MATERIALS. ALSO, YOU ORDERED THAT DOCUMENTS REGARDING SEARCH FREQUENCY BE PRODUCED MORE THAN TWO YEARS AGO. NEVER COMPLIED WITH THAT ORDER. AND 48. NOW, TWO YEARS LATER AFTER YOU'VE ORDERED THESE DOCUMENTS PRODUCED AGAIN FOR THE SECOND TIME, AND JUDGE MATZ AND GOOGLE

THAT'S DOCUMENT REQUESTS 47

10 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 AGO. HAS AFFIRMED THAT ORDER, THEY WANT TO PREVENT DR. ZADA FROM SEEING THEM. DR. ZADA SHOULD HAVE SEEN THESE DOCUMENTS TWO YEARS SO, THEY VIOLATED A COURT ORDER FOR TWO YEARS AND NOW

THEY WANT TO PREVENT DR. ZADA FROM LOOKING AT THE DOCUMENTS THAT HE CLEARLY COULD HAVE SEEN TWO YEARS AGO. THEY HAVEN'T STATED WHAT ADDITIONAL EVIDENCE THERE IS THAT THEY NOW HAVE TO LITIGATE THIS ISSUE AGAIN OR TO PREVENT DR. ZADA FROM SEEING THESE DOCUMENTS. YOU KNOW, WE CAN'T GO OVER THIS EVERY TIME THEY WANT TO PRODUCE NEW DOCUMENTS. JUST TO GO BACK OVER THE SUBSTANCE OF DR. ZADA BEING ABLE TO SEE THESE DOCUMENTS, DR. ZADA -- FIRST, DR. ZADA IS ESSENTIAL TO THE LITIGATION OF THE CASE. AND I

CANNOT DO IT WITHOUT HIM HAVING ACCESS TO ALL OF THE DOCUMENTS. THEIR SUGGESTION THAT DR. ZADA NOT HAVE ACCESS TO THE DOCUMENTS REGARDING IMAGE RECOGNITION WOULD MAKE THE PRODUCTION OF THESE DOCUMENTS MEANINGLESS SINCE I CANNOT FULLY UNDERSTAND THEM WITHOUT HIS ASSISTANCE. WE THINK THAT THEY MISREPRESENTED TO THE COURT REGARDING THE AVAILABILITY OF IMAGE RECOGNITION TECHNOLOGY TO LOCATE INFRINGING IMAGES IN THEIR IMAGE SEARCH INDEX. BOTH THE DISTRICT COURT AND THE COURT OF APPEALS RELIED ON THEIR STATEMENTS IN THE RULING ON THE MOTION FOR

11 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 YOU. MAY I HAND THIS UP? THE COURT: UH-HUH. LET ME GIVE YOU THIS ALSO. PRELIMINARY INJUNCTION, FINDING THAT IMAGE RECOGNITION WAS NOT AVAILABLE. AND WE BELIEVE IT WAS.

REGARDING THE SEARCH FREQUENCY DOCUMENTS, GOOGLE HAS NEVER EXPLAINED WHY THIS IS SO SENSITIVE. OVERTURE,

WHICH IS ANOTHER SEARCH ENGINE, ACTUALLY MADE THIS EXACT INFORMATION PUBLICLY AVAILABLE ON ITS WEBSITE. I DON'T EVEN BELIEVE THAT THE FEW SEARCH NUMBERS THAT GOOGLE HAS ALREADY PRODUCED ARE CORRECT. I THINK THIS

INFORMATION IS FALSE, AND I NEED TO SHOW IT TO DR. ZADA SO WE CAN DETERMINE WHETHER THAT'S THE CASE OR NOT. AND REMEMBER, THESE WERE THE DOCUMENTS THAT THEY FALSELY STATED THAT THEY COULD NOT PRODUCE. AND JUDGE MATZ

SAID IN THE HEARING WE HAD THERE THAT IF THEY DIDN'T COME UP WITH A REALLY GOOD REASON THAT THEY COULDN'T DO IT, THEY SHOULD BE SEVERELY SANCTIONED. AND I DON'T KNOW IF YOU'VE SEEN THAT TRANSCRIPT OR NOT, YOUR HONOR. THE COURT: NO. I THINK I'VE SEEN EXCERPTS OF IT.

MR. MAUSNER:

JUDGE MATZ ASKED THAT WE GIVE IT TO

MR. MAUSNER: THE COURT: ISSUE, RIGHT?

BUT NOT IN CONNECTION WITH THIS NARROW

12 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 MS. HERRICK: THE COURT: NO, YOUR HONOR.

OKAY. DO YOU HAVE A COPY? I DON'T. THIS IS A HEARING BEFORE JUDGE MATZ

MR. MAUSNER: MS. HERRICK: MR. MAUSNER:

ON APRIL 14TH, 2008, PAGE 8, LINES 2 TO 14. JUDGE MATZ SAID: "I WILL SAY THIS, MR. MAUSNER, AND I ASSUME THAT A TRANSCRIPT WILL BE COMPILED, AND IT WILL BE MADE AVAILABLE TO JUDGE HILLMAN." THE COURT: I DID SEE THIS. OKAY. AND HE -I

MR. MAUSNER: THE COURT: GUESS YOU. MR. MAUSNER: HE SAYS:

IN SOME PLEADING SOMEONE QUOTED IT.

YES.

"IF GOOGLE DOESN'T PROVIDE -- AND YOU SHOULD HEAR THIS LOUD AND CLEAR, MR. ZELLER -- AN ABSOLUTELY COMPELLING CLOSE TO IRREFUTABLE BASIS VERY PROMPTLY AS TO WHY THE INFORMATION THAT IS ENCOMPASSED BY REQUESTS 135 TO 137 THAT JUDGE HILLMAN ORDERED IS INACCESSIBLE WITHIN THE MEANING OF RULE 26, THEN, NOT ONLY WILL THE INFORMATION HAVE TO BE PROVIDED, BUT FOR HAVING PUT PERFECT 10 TO THE ADDITIONAL EXPENSE AND

13 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 CONSUMPTION OF TIME IN ACHIEVING THAT RULING, WHICH WOULD INITIALLY HAVE TO COME FIRST FROM JUDGE HILLMAN, SANCTIONS SHOULD BE IMPOSED, POSSIBLY INCLUDING PARTIALLY TERMINATING SANCTIONS." AND, THEN, ON PAGE 10 -- THIS IS LINES 10 THROUGH 16, HE GOES ON AND SAYS BASICALLY THAT THEY'RE GOING TO HAVE TO EXPLAIN WHY THEY DIDN'T PRODUCE THIS BEFORE. NOW, WE SHOULD HAVE GOTTEN MUCH OF THAT INFORMATION EARLIER BECAUSE SOME OF IT WAS INCLUDED IN THE ORDER TWO YEARS AGO THAT THEY NEVER PRODUCED DOCUMENTS ON. THEY WANT TO PRECLUDE DR. ZADA FROM SEEING THIS. SO, NOW AND THEY'VE

GIVEN NO REASON FOR CHANGING WHAT'S ALREADY BEEN ORDERED. DR. ZADA HAS BEEN PARTICIPATING IN LAWSUITS WITH PROTECTIVE ORDERS AND HAS HAD ACCESS TO THE HIGHEST LEVEL OF CONFIDENTIAL INFORMATION FOR SEVEN YEARS. THERE'S NEVER BEEN

A HINT THAT DR. ZADA HAS BREACHED A PROTECTIVE ORDER. THIRD, GOOGLE'S CLAIM THAT GOOGLE IS A COMPETITOR OF PERFECT 10 IN A WAY THAT WOULD ALLOW PERFECT 10 TO USE GOOGLE'S TRADE SECRETS IS FRIVOLOUS. SAME ARGUMENT TO YOUR HONOR BEFORE. THEY MADE THIS EXACT WHILE GOOGLE COMPETES

UNFAIRLY WITH PERFECT 10 IN OFFERING ADULT CONTENT, PERFECT 10 DOES NOT COMPETE WITH GOOGLE IN OFFERING SEARCH ENGINE SERVICES OR IMAGE RECOGNITION TECHNOLOGY. THERE'S BEEN NO BREACH OF CONFIDENTIALITY BY DR.

14 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 HONOR. ZADA OR ANYTHING ELSE THAT WOULD JUSTIFY A CHANGE IN THE PROTECTIVE ORDER. GOOGLE'S ATTEMPT TO RELITIGATE THIS ISSUE WITH NO NEW EVIDENCE GOES AGAINST THE SPECIFIC INSTRUCTIONS OF JUDGE MATZ THAT HE MADE IN THE MICROSOFT CASE. AND HE SAYS I WANT

YOU TO -- WHAT WAS GOING ON IS ANDREW BRIDGES WAS SWITCHING FROM REPRESENTING GOOGLE TO MICROSOFT. AND HE INSTRUCTED MR. AND WE ALSO

BRIDGES TO PROVIDE THE TRANSCRIPT TO GOOGLE. PROVIDED THEM THIS PORTION OF THE TRANSCRIPT.

THIS IS THE OTHER TRANSCRIPT I HANDED YOU, YOUR PAGES 6 TO 8 WHERE JUDGE MATZ SAYS, DON'T RELITIGATE

ISSUES THAT HAVE ALREADY BEEN LITIGATED IN ANOTHER CASE. NOW, THIS IS EVEN WORSE BECAUSE THEY'RE RELITIGATING AN ISSUE THAT'S ALREADY BEEN LITIGATED IN THIS CASE. THEY HAVEN'T STATED ANY REASON FOR CHANGING DR. ZADA'S

ACCESS TO THIS INFORMATION, AND THEY SHOULD NOT BE ALLOWED TO DO THIS. AND BY THE WAY, YOUR HONOR, MS. HERRICK STATED THAT THEY FIRST BROUGHT THIS UP IN APRIL, THAT THEY WERE GOING TO DO IT. AND THEY GOT ME TO AGREE ON A TEMPORARY BASIS TO HOLD

THIS SO THAT THEY COULD COME IN HERE AND ARGUE IT TO THE COURT. AND HERE WE ARE IN THE MIDDLE OF JULY, AND THAT'S THE THEY SHOULD HAVE DONE THIS LONG

FIRST TIME WE'RE DOING IT.

AGO IF THEY THOUGHT THAT THIS WAS SO IMPORTANT. WE CAN'T KEEP RELITIGATING THESE THINGS. IT'S JUST

15 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 TOO BURDENSOME FOR THE COURT AND FOR US. THE COURT: WASN'T THERE AN EARLIER CASE AS WELL AS THIS CASE IN WHICH THE ISSUE OF DR. ZADA'S ACCESS WAS SQUARELY RAISED AND I PERMITTED HIM TO HAVE ACCESS? KNOW WHICH OF THE MANY IT WAS, BUT -MR. MAUSNER: YES, IT WAS -- AT THE TIME ANOTHER -I DON'T

WINSTRON & STRAWN WAS REPRESENTING GOOGLE. THE COURT: YES. THEY TOOK THE POSITION THAT THERE

MR. MAUSNER:

SHOULD BE A CATEGORY OF DOCUMENTS THAT DR. ZADA COULD NOT SEE. WE LITIGATED THAT, AND YOUR HONOR ISSUED A RULING THAT I HAVE THE ORDER HERE,

DR. ZADA SHOULD BE ABLE TO SEE THAT. YOUR HONOR. (PAUSE IN PROCEEDINGS.) THE COURT: OKAY.

ANYTHING ELSE, MR. MAUSNER? THANK YOU.

MR. MAUSNER: THE COURT:

NO, YOUR HONOR.

I WILL SAY SINCE YOU'RE FAIRLY NEW TO

MY COURTROOM, LET ME -- I DO LIKE TO MAKE MYSELF AVAILABLE ON SORT OF AN AS-NEEDED BASIS ON PERFECT 10 CASES BECAUSE SO MUCH IS GOING ON. ON THE OTHER HAND, THERE ARE THINGS THAT SOMETIMES ARE NOT REALLY BEST FOR ME TO RULE ON JUST BY COMING OUT HERE. MS. HERRICK: THE COURT: I TOTALLY AGREE, YOUR HONOR.

SO, I DON'T KNOW WHERE THIS IS GOING TO

16 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 FOLLOW. MS. HERRICK: MAUSNER HAS JUST SAID. THE COURT: YES, YES. I COMPLETELY AGREE, AND MR. MAUSNER THIS IS A VERY IF I CAN BRIEFLY REPLY TO WHAT MR.

MS. HERRICK:

JUST SPENT ABOUT TEN MINUTES MAKING MY POINT. HOTLY CONTESTED ISSUE.

YOUR HONOR RESERVED GOOGLE THE

OPPORTUNITY ON A LIMITED BASIS TO COME BACK REGARDING LIMITED CATEGORIES OF DOCUMENTS IF AND WHEN GOOGLE BELIEVED THAT THEY WERE SO HIGHLY PROPRIETARY THAT SPECIAL CONSIDERATION WAS WARRANTED. AND WHAT I'M SAYING IS THAT CASE HAS ARISEN. WE NEED TO BRIEF THIS FOR YOUR HONOR SO YOUR HONOR MAY CONSIDER IT. MR. MAUSNER IS TRYING TO FORCE YOUR HONOR TO AND

HEAR THIS ISSUE ON THE MERITS TODAY, WHICH I OPPOSE BECAUSE THIS IS A COMPLEX ISSUE. WE DO HAVE ARGUMENTS TO PRESENT.

AND YOUR HONOR IS ENTITLED TO SEE SOMETHING BEFORE YOU HAVE TO RULE. THE COURT: TO MY KNOWLEDGE I HAVE NEVER IMPOSED I

SORT OF A SPONTANEOUS CONFERENCE UNLESS BOTH SIDES AGREE.

HAVEN'T INTENTIONALLY DONE THAT. AND I DON'T -- YOU KNOW, I HAD ASSUMED WHEN I CAME OUT HERE THAT THIS WAS A MUTUAL AGREEMENT. MS. HERRICK: WE INFORMED PERFECT 10 LAST WEEK THAT

WE WANTED TO COME BEFORE YOUR HONOR TO IMPOSE A TEMPORARY

17 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 STATUS QUO -THE COURT: OKAY.

MS. HERRICK: -- JUST SO THAT WE COULD GET THESE DOCUMENTS PRODUCED PURSUANT TO JUDGE MATZ'S ORDER ON WEDNESDAY. AND WE EVEN PROPOSED A BRIEFLY SCHEDULE.

PERFECT 10'S RESPONSE IS I'M NOT GOING TO PARTICIPATE -- WE ARE NOT GOING TO PARTICIPATE IN THIS PROCESS WITH YOU. WE BELIEVE YOUR MOTION IS IMPROPER AND

SANCTIONABLE, WHICH JUST RUNS DIRECTLY CONTRARY TO YOUR HONOR'S ORDER WHERE YOU EXPRESSLY RESERVED THIS RIGHT TO ALLOW GOOGLE TO COME BACK IN LIMITED CIRCUMSTANCES IF WARRANTED. THE COURT: WHAT IS THE -- WHAT IS THE PROBLEM WITH

JUST ENFORCING -- KEEPING THE STATUS QUO UNTIL THERE'S A FORMAL MOTION WITHIN LET'S SAY TWO WEEKS? WHAT IS THE HARM?

I DON'T FEEL I CAN TINKER WITH JUDGE MATZ'S -MS. HERRICK: THE COURT: AND THAT IS ALL WE'RE ASKING FOR.

-- ORDER, YOUR CLIENT'S STAYED ORDER. THEY'VE KNOWN ABOUT THIS SINCE APRIL.

MR. MAUSNER:

IT'S JUST ANOTHER WAY OF DELAYING EITHER PRODUCTION OF THE DOCUMENTS OR DR. ZADA BEING ABLE TO SEE THEM. AND THEY HAVE NOT STATED A SINGLE REASON WHY THERE SHOULD BE ANY CHANGE AT ALL TO WHAT'S ALREADY BEEN DONE. THEY WANTED TO COME DOWN HERE FOR THIS HEARING. YOU'D THINK

THAT THEY COULD STATE ONE REASON WHY THINGS SHOULD CHANGE.

18 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 YOU KNOW, DR. ZADA HAS BEEN VERY CAREFUL ABOUT KEEPING CONFIDENTIAL INFORMATION CONFIDENTIAL. THERE'S NEVER EVEN

BEEN A HINT THAT THERE HAS BEEN ANY BREACH OF A PROTECTIVE ORDER. WHAT BASIS DO THEY HAVE FOR COMING IN HERE AND SAYING THEY HAVEN'T STATED A

THINGS SHOULD CHANGE AT THIS POINT. SINGLE THING. THE COURT: EITHER SIDE? MR. MAUSNER: ALL RIGHT.

WELL -- ANYTHING ELSE FROM

EITHER WE -- WE THINK THIS COULD BE

DECIDED RIGHT NOW, OR THEY'RE JUST GOING TO HAVE TO GO WITH THE WAY THINGS ARE. YOU KNOW, WE AGREED FOR, I DON'T KNOW,

WELL OVER A MONTH -- A MONTH AND A HALF TO HOLD OFF ON THIS STUFF. THE DOCUMENTS I ALREADY HAVE I'M NOT SURE WHAT WE CAN I THOUGHT IT WAS GOING TO BE A VERY SHORT NOW THEY

DO ABOUT IT.

TEMPORARY AGREEMENT NOT TO SHOW THEM TO DR. ZADA. WANT TO DELAY THIS FURTHER.

THEY'RE THE ONES WHO REQUESTED THIS HEARING, AND THEY'RE COMING IN HERE, AND THEY'RE NOT GIVING YOU A SINGLE BASIS FOR RULING THAT DR. ZADA, WHO'S ABSOLUTELY ESSENTIAL TO THIS CASE, SHOULD NOT BE ABLE TO SEE THESE DOCUMENTS. THE COURT: PRODUCED ON MONDAY? MS. HERRICK: THE COURT: ON WEDNESDAY -WHAT OTHER DOCUMENTS ARE GOING TO BE

ON WEDNESDAY. -- THERE ARE GOING TO BE ADDITIONAL

MS. HERRICK:

19 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 DOCUMENTS REGARDING ONE OF THE TWO CATEGORIES, DOCUMENTS RELATED TO SEARCH, TOTAL SEARCH NUMBERS, TOTAL QUERY COUNTS. AND I JUST WANT TO BE VERY STRIDENT ABOUT THIS, YOUR HONOR. I AM INTENTIONALLY NOT ADDRESSING THE MERITS

BECAUSE THAT IS NOT WHY -- WE ARE HERE BECAUSE GOOGLE REQUESTED YOUR HONOR'S TIME AND WE'RE VERY APPRECIATIVE THAT YOU SAW US ON SUCH A SHORT NOTICE. AND AS MY MEET-AND-CONFER EMAIL TO MR. MAUSNER MADE EXTREMELY CLEAR LAST WEEK, I SAID WE ARE NOT COMING TO ADDRESS THE MERITS. THESE ARE COMPLICATED ISSUES. THESE ARE

IMPORTANT CROWN JEWEL TRADE SECRETS.

GOOGLE IS ENTITLED TO

BE HEARD ABOUT THIS MATTER PURSUANT TO YOUR HONOR'S ORDER PERMITTING US TO SEEK LIMITED RECONSIDERATION. YOU'RE NOT HEARING MERITS ARGUMENTS FROM ME. ALL WE'RE ASKING IS FOR A TEMPORARY ONE- TO TWO-WEEK STATUS QUO, WHICH MR. MAUSNER HAS NOT GIVEN YOU ANY REASON WHY YOU SHOULDN'T IMPOSE OR WHY PERFECT 10 WOULD BE PREJUDICED BY A ONE- OR TWO-WEEK IMPOSITION OF A STATUS QUO WHILE WE QUICKLY PUT TOGETHER A JOINT STIPULATION. PERFECT 10 CAN MAKE ALL THE ARGUMENTS THAT JUST MAYBE YOU'LL HEAR. AS WELL. WE WILL MAKE ALL OF OUR ARGUMENTS TO YOU THAT'S WHY

AND THE COURT CAN IN DUE COURSE RENDER ITS RULING.

BUT WE WANT TO MAKE SURE THAT WE COMPLY WITH JUDGE MATZ'S ORDER REQUIRING DISCOVERY ON WEDNESDAY WITHOUT HAVING TO GO IN EX PARTE --

20 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 COURT: I UNDERSTAND. YES. I UNDERSTAND.

MS. HERRICK: THE COURT:

THANK YOU, YOUR HONOR. SINCE COUNSEL ARE NOT

LET ME SAY THIS.

GETTING TO THE MERITS IT WOULD BE INAPPROPRIATE FOR ME TO GET TO THE MERITS. BUT WHEN I GET THAT JOINT STIPULATION PLEASE

BE AWARE THAT THIS GROUND HAS BEEN PLOWED AND REPLOWED I THINK TWO OR THREE TIMES ON DIFFERENT CASES. AND THERE HAS

NEVER BEEN ANY ALLEGATION THAT DR. ZADA HAS BREACHED THE DUTIES IMPOSED BY A CONFIDENTIALITY ORDER. HE IS -- I'VE SAID THIS SEVERAL DIFFERENT WAYS. IS A UNIQUE PERSON. HE

AND THERE ARE TIMES WHERE HE WILL STATE

THINGS THAT REALLY ARE BEYOND HIS KIN, AND THEN THERE ARE OTHER TIMES WHEN HE IS ACTUALLY HELPFUL TO THE COURT IN DECIDING WHAT THE RULING SHOULD BE. BUT I HAVE BEEN CONVINCED OVER HOWEVER MANY YEARS IT'S BEEN THAT HE IS ESSENTIAL TO THE PROSECUTION OF THESE CASES. SO, I WILL LOOK AT THE ARGUMENT FRESHLY BECAUSE I CLEARLY DID GIVE YOU THE OPPORTUNITY -- OR GIVE GOOGLE THE OPPORTUNITY TO COME BACK ON A LIMITED BASIS. AND YOU BEING

NEW TO THE CASE I WANT TO GIVE YOU EVERY BENEFIT OF THE DOUBT. BUT PLEASE BE AWARE OF THE WATER THAT HAS GONE UNDER THE BRIDGE. BECAUSE IF I DON'T HEAR SOMETHING FRESH

AND ALARMING OR WHATEVER, IT'S LIKELY TO HAVE THE SAME

21 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 RESULT. AND I SAY THAT WITH NO ANIMUS OR ANNOYANCE I WANT TO GIVE YOU THE PRESUMPTION OF GOOD WILL.

WHATSOEVER.

BUT OTHER PARTIES AND OTHER CASES AND GOOGLE IN THIS CASE HAVE RAISED THE SAME ISSUES. AND I'VE BEEN

CONSISTENT, NOT FOR THE SAKE OF JUST BEING CONSISTENT, BUT I DON'T SEE -- AND I ANTICIPATE WHAT THE ARGUMENT IS GOING TO BE THIS TIME, BUT I JUST DON'T KNOW HOW DIFFERENT IT WILL BE. HAVING SAID THAT, I AM GOING TO GRANT THE REQUEST TO EXTEND THE STATUS QUO REGARDING OUTSIDE ATTORNEY'S EYES ONLY FOR A PERIOD OF 14 DAYS. IS -MS. HERRICK: THE COURT: END OF THAT WEEK. UNTIL THE 1ST. MS. HERRICK: THE COURT: AUGUST 2ND I BELIEVE WOULD BE -JULY 28TH, YOUR HONOR. AND I'LL EXPECT A -- 14 DAYS

WELL, MIGHT AS WELL GIVE YOU UNTIL THE

I'LL BE AT THE NINTH CIRCUIT CONFERENCE

THAT'S A SATURDAY. SO, AUGUST 1ST. WOULD BE A FRIDAY.

MS. HERRICK: THE COURT:

RIGHT.

I'LL ORDER A JOINT STIPULATION WITH NO SUPPLEMENTAL MEMORANDA. AND I'M GOING TO SAY TEN PAGES PER SIDE.

DOES THAT SOUND REASONABLE? MS. HERRICK: YOUR HONOR. MR. MAUSNER: YOUR HONOR, I HAVE STUFF THAT'S I THINK THAT SHOULD WORK JUST FINE,

22 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 21ST? MS. HERRICK: WE'LL HAVE TO LOOK AT A CALENDAR, BUT COMING UP STARTING ON THE 29TH. SO, I WOULD LIKE TO GET THE

JOINT STIPULATION SUBMITTED BY THE 28TH IF THAT'S POSSIBLE. THE COURT: FOLLOWING WEEK. MS. HERRICK: AND, YOUR HONOR, I HAVE A CONFLICT SO, I I WON'T BE LOOKING AT IT UNTIL THE

FROM ABOUT APPROXIMATELY THE 23RD THROUGH THE 28TH. WOULD PREFER TO GO WITH YOUR HONOR'S -THE COURT: LET'S SAY THE 1ST.

I JUST DON'T HAVE

MY LAW CLERK WORK ON THESE CASES, SO -- OUT OF POCKET. MS. HERRICK: MR. MAUSNER: THANK YOU. WELL, I NEED TO GET IT FROM THEM SO

THAT I CAN GET MY PARTS BACK TO THEM -THE COURT: OH, RIGHT. -- BY THE 28TH. SO --

MR. MAUSNER: THE COURT:

OH, YES. SO, WHAT I -WE'LL SPLIT THE TIME.

MR. MAUSNER:

MS. HERRICK: RIGHT. THE COURT: YES.

MS. HERRICK: THE COURT:

WE'LL WORK IT OUT.

YES. WOULD YOU GIVE ME YOUR PART BY THE

MR. MAUSNER:

I THINK WHAT WE SHOULD DO IS SPLIT THE TIME SO THAT YOU HAVE AN EQUAL AMOUNT OF TIME TO WRITE --

23 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 TIME. MS. HERRICK: THE COURT: YES, WE SHOULD WORK IT OUT. IT. MS. HERRICK: MR. MAUSNER: PRIOR TO THE 28TH -MS. HERRICK: RIGHT. THAT SOUNDS GOOD. THAT WILL -MR. MAUSNER: I NEED A WEEK BEFORE -- I NEED A WEEK

BEFORE THE 28TH SO I CAN GET A -THE COURT: MONDAY, THE 4TH. MS. HERRICK: THE COURT: OKAY. WHY DON'T YOU FILE IT ON THE 4TH,

THAT'S THE FIRST DAY I COULD LOOK AT

BUT I NEED IT PRIOR TO THE -- A WEEK

MR. MAUSNER: -- SO I CAN HAVE TIME TO DO OUR PART. THE COURT: OR A WEEK PRIOR TO THE 4TH. I'M SORRY. WHICH DAYS ARE YOU

MS. HERRICK: UNAVAILABLE? MR. MAUSNER: THE COURT:

I'M UNAVAILABLE STARTING ON THE 29TH. JUST SPLIT

I'LL LET YOU WORK IT OUT.

OKAY. SO, WE'LL FILE ON AUGUST 4TH A

MS. HERRICK:

10-PAGE PER SIDE JOINT STIPULATION. IS THAT CORRECT, YOUR HONOR? THE COURT: NO ADDITIONAL BRIEFING. THANK YOU.

MS. HERRICK:

24 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 COURT: AND DON'T NOTICE IT FOR A HEARING DATE.

I MIGHT BE ABLE TO RESOLVE IT WITHOUT DELAYING, YOU KNOW, FOR A HEARING. MS. HERRICK: THE COURT: WILL DO.

IF I NEED A HEARING, I'LL LET YOU KNOW. THANK YOU. JUST BEFORE YOU LEAVE, YOUR HONOR.

MS. HERRICK: MR. MAUSNER: THE COURT:

YES. I NEEDED A WEEK BEFORE THE 28TH SO

MR. MAUSNER:

THAT I CAN GET THEM MY PART -THE COURT: SHE'S AGREED TO THAT. I'M AGREEING THAT WE SHOULD SIT DOWN AND TODAY IS THE

MS. HERRICK:

AND LOOK AT A CALENDAR AND WORK OUT A DATE. 14TH.

YOU'RE ASKING ME TO GIVE IT TO YOU IN A WEEK AND GIVE

YOU THREE WEEKS TO -MR. MAUSNER: NO. GIVE ME ONE WEEK. YOU GIVE IT

TO ME ON THE 21ST, AND I'LL GIVE IT BACK TO YOU ON THE 28TH. MS. HERRICK: AND I'M SAYING THAT I WILL TRY TO

WORK WITH YOU, BUT I DON'T HAVE MY CALENDAR IN FRONT OF ME RIGHT NOW. YOU. MR. MAUSNER: GOING TO DO? MS. HERRICK: MR. MAUSNER: WELL, WHAT DAYS ARE YOU UNAVAILABLE? I'M AVAILABLE STARTING ON THE 29TH. OKAY. BUT IF YOU CAN'T, WHAT ARE YOU SO, I NEED TO MAKE SURE THAT I CAN DO THAT FOR

25 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 MS. HERRICK: THROUGH? MR. MAUSNER: MS. HERRICK: THE 5TH. JULY 29TH TO AUGUST 5TH. OKAY. YES,

I THINK WE CAN DEFINITELY WORK THAT OUT. TAKE UP YOUR HONOR'S TIME WITH IT. THE COURT: ALL RIGHT.

LET'S MAYBE NOT

MR. MAUSNER, DO YOU NEED

THESE BACK, OR MAY I KEEP THESE? MR. MAUSNER: THE COURT: NO, YOU MAY KEEP THOSE.

ALL RIGHT. THANK YOU, YOUR HONOR.

MR. MAUSNER: THE COURT:

THANK YOU ALL. THANK YOU VERY MUCH.

MS. HERRICK: THE CLERK:

COURT IS ADJOURNED.

(PROCEEDINGS CONCLUDED AT 1:54 P.M.)

26 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 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN JULY 21, 2008 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE