Perfect 10 Inc v. Google Inc et al

Filing 328

DECLARATION of Jeffrey N. Mausner In Opposition To MOTION for Protective Order for Designation of One Category of Documents as Outside Counsel's Eyes Only : Joint Stipulation on Google's Motion for Partial Reconsideration of Protective Order to Designate One Category of Documents Outside #325 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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JEFFREY N. MAUSNER (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367-3640 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, Defendants. ______________________________ AND CONSOLIDATED CASE Master Case No.: 04-9484 AHM (SHx) DECLARATION OF JEFFREY N. MAUSNER IN OPPOSITION TO GOOGLE'S MOTION TO RECONSIDER PROTECTIVE ORDER DISCOVERY MOTION BEFORE JUDGE HILLMAN Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

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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 _____________________________________ 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 - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ---

PERFECT 10, INC., A CALIFORNIA CORPORATION,

) ) ) ) PLAINTIFF, ) ) vs. ) No. CV04-09484-AHM(SHx) ) GOOGLE, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, APRIL 14, 2008

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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 sufficient to describe Google's attempts to develop or use any Image Recognition Software." Now, when I was dealing with the motion to dismiss, I made certain findings, or at least observations, that are related to the existence, if any, of Image Recognition Software, and what I supposedly found -- and my gloss on it -was quoted in the amended opinion of the Ninth Circuit at Page 1174. That's 508 F.3d at Page 1174. The key language which underlies my ruling on this disputed provision of Judge Hillman's order that is the language of the Ninth Circuit said, quote, "Without image recognition technology, Google lacks the practical ability to police the infringing activities of third-party websites," end quote. That language inherently confirms what I think common sense would warrant a finding for, and that is that the existence or non-existence, as the case may be, of image recognition technology is highly relevant. I don't understand how you can argue, as I think you have on this motion, Mr. Zeller, that it's not relevant. either exists or it doesn't. It

It may not have existed when I

was grappling with this a few years ago. If it exists now or in what manner it exists or in what capacity it can be applied is highly relevant. Judge Hillman's order is absolutely appropriate. I think

I see no

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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: APRIL 18, 2008

_________________________________ Cindy L. Nirenberg, CSR No. 5059

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Case 2:04-cv-09484-AHM-SH

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. CV04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] ORDER ON GOOGLE INC.'S OBJECTIONS TO, AND PERFECT 10, INC.'S MOTION FOR REVIEW OF, PORTIONS OF THE MAGISTRATE JUDGE'S ORDER OF FEBRUARY 22, 2008 GRANTING IN PART AND DENYING IN PART PERFECT 10'S MOTION TO COMPEL Hon. A. Howard Matz Courtroom: Hearing Date: Hearing Time: 14 April 14, 2008 10:00 am

10 PERFECT 10, INC., a California corporation, 11 Plaintiff, 12 vs. 13 GOOGLE INC., a corporation; and 14 DOES 1 through 100, inclusive, 15 16 17 19 20 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 18 corporation, Plaintiff,

21 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 22 DOES 1 through 100, inclusive, 23 24 25 26 27 28 Defendants.

Discovery Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] [PROPOSED] ORDER ON GOOGLE'S OBJECTIONS TO, AND PERFECT 10'S MOTION FOR REVIEW OF, THE MAGISTRATE JUDGE'S ORDER

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ORDER Google Inc.'s Objections To, and Perfect 10, Inc.'s Motion for Review

3 of, the Magistrate Judge's Order of February 22, 2008, Granting in Part and Denying 4 In Part Perfect 10, Inc.'s Motion to Compel, came on for hearing on April 14, 2008, 5 the Honorable A. Howard Matz presiding. Jeffrey N. Mausner appeared on behalf 6 of Plaintiff Perfect 10, Inc. ("Perfect 10"). Michael T. Zeller and Rachel M. Herrick 7 appeared on behalf of Defendant and Counterclaimant Google Inc. ("Google"). 8 10 11 13 137 14 Perfect 10's objections to the Magistrate Judge's Order regarding 15 Request Nos. 135, 136, and 137 are overruled, and the Magistrate Judge's Order 16 regarding those Requests is affirmed. 17 PERFECT 10'S OBJECTIONS REGARDING (PROPOSED) FURTHER 18 ORDER NO. 2 19 Perfect 10 objected to the Magistrate Judge's decision to not enter 20 (Proposed) Further Order No. 2. Pursuant to the discussion at the hearing, the 21 (Proposed) Further Order is imposed mutually on both parties as to all past, present 22 and future requests for production. Accordingly, on or before June 16, 2008, 23 Google shall provide Perfect 10 with a written response stating whether Google has 24 produced documents in response to each of Perfect 10's requests for documents, 25 listed by set number and request number. If no documents responsive to a request 26 are located after a good-faith reasonable search and, therefore, none ultimately 27 produced, Google shall so state with respect to each such request. On or before this 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] [PROPOSED] ORDER ON GOOGLE'S OBJECTIONS TO, AND PERFECT 10'S MOTION FOR REVIEW OF, THE MAGISTRATE JUDGE'S ORDER

Upon consideration of all papers and records on file and the parties'

9 oral argument, the Court orders as follows: ORDERS ON PERFECT 10'S OBJECTIONS

12 PERFECT 10'S OBJECTIONS REGARDING REQUEST NOS. 135, 136, AND

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1 same date, Perfect 10 shall provide Google with a written response stating whether 2 Perfect 10 has produced documents in response to each of Google's requests for 3 documents, listed by set number and request number. If no documents responsive to 4 a request are located after a good-faith reasonable search and, therefore, none 5 ultimately produced, Perfect 10 shall so state with respect to each such request. The 6 obligations of Google and Perfect 10 herein to state whether they have produced 7 documents in response to each other party's requests for documents, listed by set 8 number and request number, shall apply to all future requests for documents as well, 9 and shall be subject to the parties' duties to seasonably supplement their discovery 10 responses pursuant to Fed. R. Civ. P. 26(e). 11 PERFECT 10'S OBJECTIONS REGARDING REQUEST NO. 197 12 Perfect 10's objections to the Magistrate Judge's denial of this Request 13 are sustained. Google shall produce transcripts in its possession, custody or control 14 of depositions of any Google employees, officers and directors taken in connection 15 with the lawsuit Columbia Pictures Industries, et. al. v. Drury, et. al., filed in the 16 United States District Court for the Southern District of New York. 17 18 20 195 21 Google's objections to Request Nos. 128-131 and 194-195 are 22 overruled, but the Requests are limited to reports, studies, or internal memoranda. 23 On or before June 16, 2008, Google shall produce the following: 24 All reports, studies, or internal memoranda ordered, requested, or 25 circulated by Bill Brougher, Susan Wojcicki, Walt Drummond, and Eric Schmidt 26 relating to the following topics: search query frequencies, search query frequencies 27 for adult-related terms, number of clicks on adult images and images in general, 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] [PROPOSED] ORDER ON GOOGLE'S OBJECTIONS TO, AND PERFECT 10'S MOTION FOR REVIEW OF, THE MAGISTRATE JUDGE'S ORDER

ORDERS ON GOOGLE'S OBJECTIONS

19 GOOGLE'S OBJECTIONS REGARDING REQUEST NOS. 128-131 and 194-

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1 traffic to infringing websites, the draw of adult content, and percentage of searches 2 conducted with the safe search filter off. (Request Nos. 128-131). 3 All reports, studies, or internal memoranda circulated by or to John 4 Levine, Heraldo Botelho, Radhika Malpani, Jessie Jiang, Lawrence You, Diane 5 Tang, and Alexander MacGillivray relating to the following topics: search query 6 frequencies, search query frequencies for adult-related terms, number of clicks on 7 adult images and images in general, traffic to infringing websites, the draw of adult 8 content, and percentage of searches conducted with the safe search filter off. 9 (Request Nos. 194-95). 10 GOOGLE'S OBJECTIONS REGARDING REQUEST NO. 174 11 Google's objections are sustained in part and overruled in part. On or 12 before May 15, 2008, Google shall produce documents sufficient to describe 13 Google's attempts to develop or use any image recognition software capable of 14 matching a known still photographic image with another image in Google's search 15 engine index or search engine database. Google is not ordered to produce 16 documents regarding any other types of image recognition technology. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] [PROPOSED] ORDER ON GOOGLE'S OBJECTIONS TO, AND PERFECT 10'S MOTION FOR REVIEW OF, THE MAGISTRATE JUDGE'S ORDER

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1 GOOGLE'S OBJECTIONS REGARDING REQUEST NO. 196 2 Google's objections are overruled, subject to the following clarification 3 regarding the scope of Request No. 196. Perfect 10 sought, and the Magistrate 4 Judge ordered, production of "Google's DMCA log." As Perfect 10 clarified at the 5 hearing, "DMCA log" as used in Request No. 196 refers to a spreadsheet-type 6 document summarizing DMCA notices received, the identity of the notifying party 7 and the accused infringer, and the actions (if any) taken in response. Google's 8 obligation to produce documents in response to Request No. 196 shall be subject to 9 the foregoing definition. 10 11 12 DATED: May 13, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] [PROPOSED] ORDER ON GOOGLE'S OBJECTIONS TO, AND PERFECT 10'S MOTION FOR REVIEW OF, THE MAGISTRATE JUDGE'S ORDER

IT IS SO ORDERED.

By A. Howard Matz United States District Judge

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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 _____________________________________ 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 - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ---

) ) ) ) PLAINTIFF, ) ) vs. ) No. CV07-05156-AHM(SHx) ) MICROSOFT, INC., ) ) DEFENDANT. ) ___________________________________) PERFECT 10, INC., A CALIFORNIA CORPORATION,

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, FEBRUARY 11, 2008

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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 Honor. well? THE COURT: MR. BRIDGES: Yeah. Okay. So those are about as similar to MR. BRIDGES: Okay. And so you have the DivX case as

this as the You Tube cases are. THE COURT: MR. BRIDGES: Yeah. Okay.

Just one point of information, Your

We're doing the paperwork now, but -- you were familiar I

with my participation in the Perfect 10/Google case.

actually will be filing papers of withdrawal in the Google case in the near future. THE COURT: MR. BRIDGES: THE COURT: MR. BRIDGES: THE COURT: Who will be replacing your firm? Quinn Emanuel. What about on this case? I'm here for this case. Okay. All right. Let's talk about the

management of this case.

Let's start with this question about

the protective order and whether it should differ from that in the Google case, and the extent to which Dr. Zada -- is it Zada or Zada? MR. MAUSNER: THE COURT: Zada. -- Dr. Zada should have access.

I don't want to rush into premature rulings, but I'm intent today and hereafter in making sure that this case is handled in the most efficient and brisk fashion possible, and
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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 that it be considered to be so closely related to the Perfect 10 versus Google or Amazon cases as to warrant application of rulings or opposures in those cases unless there is compelling reason to deviate or differ. Those are general words I have just used, Mr. Bridges, but it seems to me that the concerns that you expressed about a protective order -- which was consensual in the Google case, right? MR. BRIDGES: MR. MAUSNER: Not entirely, Your Honor. No, it was not, Your Honor.

They also took the position that Dr. Zada should not have access to that information. We briefed it, and we had a

hearing before Magistrate Judge Hillman and he made that determination. THE COURT: wasn't aware of that. Okay. Well, I can see why he did. I

But he's a party who has unique

significance to the prosecution of the case and the claims and the education of the lawyer. And I'm not going to preclude you from making a big deal about this if you can't enter into an agreement, but I'm giving you firm direction, Mr. Bridges, that I think that the same protective order should be applicable to this case, and that it would be at the very least a very dubious practice or burden to impose on Judge Hillman to subject him to revisiting an issue which I assume he looked at carefully and that was
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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 briefed fully where your contentions were pithily conveyed about why Zada shouldn't be given access to the highly confidential material, and so I think -- I'm not trying to make this acrimonious, but I think you proceed at your peril if you take the same position all over again, absent any evidence that you can point to or facts that Zada has failed to comply with his limitations or the scope of the protective order or has otherwise engaged in behavior which creates a new or different concern or risk to Microsoft. MR. BRIDGES: Your Honor, a couple things.

First, since that was submitted, the parties have had further discussions about this, and I actually think we are fairly close to an agreement on this. There are a couple of

outstanding issues that I think we need to iron out, but I don't think you are going to see a pitched battle on this issue at all. THE COURT: Good, because I don't want to have And I don't

pitched battles about anything that is avoidable.

want Judge Hillman, who has been grappling in a more time-invasive fashion than I, at least in the recent year on some of these issues, subjected to unnecessary work either. keep that in mind. MR. BRIDGES: THE COURT: MR. BRIDGES: Your Honor, I will. Yeah. -- just add one point. If I may -So

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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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 Date: February 15, 2008

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.

_________________________________ Cindy L. Nirenberg, CSR No. 5059

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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Case 2:04-cv-09484-AHM-SH

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