Perfect 10 Inc v. Google Inc et al

Filing 347

MEMORANDUM in Support of MOTION to Compel Answers to Interrogatories of Perfect 10, Inc. Google Inc.'s Motion to Compel Further Responses to Interrogatory Nos. 3 and 11 #336 Google Inc.'s Supplemental Memorandum in Support of Google's Motion to Compel Further Responses to Google's Interrogatory Nos. 3 and 11 filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Supplemental Declaration of Rachel M. Herrick in Support of Google's Motion to Compel Further Responses to Interrogatory Nos. 3 and 11, #2 Exhibit A to the Supplemental Declaration of Rachel M. Herrick)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 34

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel M. Herrick (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065-213 9 Attorneys for Defendant Google Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF GOOGLE'S MOTION TO COMPEL FURTHER RESPONSES TO GOOGLE'S INTERROGATORY NOS. 3 AND 11 Hon. Stephen J. Hillman Courtroom.: Hearing Date: Hearing Time: 550 September 8, 2008 2:00 pm

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

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

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

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM Dockets.Justia.com

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Introduction For over three years, Perfect 10 has refused to identify the basic operative facts

3 underlying its claims of copyright infringement. In its portions of the Joint 4 Stipulation on Google's motion to compel, Perfect 10 cites not a single case, statute or 5 rule suggesting that it can somehow avoid its discovery obligations--indeed, avoid its 6 burdens of proof on its case in chief. Perfect 10 should be ordered to respond. 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 · · · A. Argument Perfect 10's Admissions Support Granting Google's Motion. In its portions of the Joint Stipulation, Perfect 10 makes a series of admissions · Perfect 10 admits that it has not answered Google's Interrogatory Nos. 3 and 11. Jt. Stip. at 6-7. Perfect 10 admits that the charts appended to its response to Interrogatory No. 3 did not answer that Interrogatory when they were served in 2006, much less now--indeed, they were not even intended to be a comprehensive answer. Id. at 6, 50. Perfect 10 admits that the URLs in its charts allegedly responsive to Interrogatory No. 3 do not identify the URL where the allegedlyinfringing image is allegedly found--indeed, Perfect 10 calls the URL that actually appears in the charts the "wrong URL." Id. at 6-7. Perfect 10 has thus acknowledged that the charts are non-responsive. Perfect 10 admits that it knows how to answer these interrogatories--by gathering various information found in various portions of its document production--but that Perfect 10 has not yet done so. Id. at 6.

10 that are dispositive of Google's motion to compel.

25 In light of Perfect 10's admissions, it is now undisputed that Perfect 10's current 26 responses are insufficient. 27 28 -1Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM

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B.

Judge Matz Has Already Rejected Perfect 10's Hyperbolic Burden Objections--As Should This Court.

Perfect 10 refuses to answer Interrogatory Nos. 3 and 11 primarily on the

4 ground that it would "take over a hundred years" to do so. See Jt. Stip. at 4, 6-7. At 5 the status conference hearing on August 18, 2008, Judge Matz soundly rejected this 6 self-serving exaggeration: 7 8 9 10 11 12 I think on its face it lacks all credibility. ...[I]t's an example, although regrettably not the only example, of real hyperbole. ... Mr. Mausner, don't interrupt me. Okay? There could be all kinds of reasons why it's inconceivable that something like that would take a hundred years ... [b]ut I'm not going to debate the point with you because, it may be burdensome, but no way close to a hundred years.

13 Supplemental Herrick Declaration, Exh. A (Transcript, August 18, 2008, at 7:19 14 8:9. Judge Matz further admonished counsel for Perfect 10 never to bring such a 15 hyperbolic argument before the court. Id. at 8:17-19. In light of Judge Matz's 16 guidance on this issue, this Court too should reject Perfect 10's fantastical burden 17 arguments, which (in addition to lacking all credibility) do not excuse Perfect 10's 18 failure to respond to these basic interrogatories.1 19 20 21 23 24 Though it will be a burden for Perfect 10 to identify the alleged infringements of 25 its alleged copyrights for which it claims Google is liable, that burden is not undue because these are the very facts Perfect 10 will need to present to the jury. See Life 26 Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 26 (S.D.N.Y. 1966); L.H. et. al. v. 27 Schwarzenegger, 2007 U.S. Dist. LEXIS 73752, at *9-10 (E.D. Cal. Sept. 21, 2007); 8A Wright, Miller, Marcus, Fed. Prac. and Proc., § 2174 at 309 (2d ed. 1994). 28 Case No. CV 04-9484 AHM (SHx) [Consolidated -2with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM
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C.

Perfect 10 Has Effectively Conceded That It Has Not Satisfied Rule 33(d).

Perfect 10 claims that Google never addressed why Perfect 10's document

22 production was not sufficiently organized to permit Google to find the answer to

1 these Interrogatories itself. Jt. Stip. at 51. Perfect 10 is wrong. Google addressed 2 this issue at pages 42-49 of the Joint Stipulation, explaining in great detail why 3 Google cannot locate the answers to these interrogatories in Perfect 10's 600-gigabyte 4 document production.2 Perfect 10's portions of the Joint Stipulation are silent in 5 response to Google's arguments. By failing to address it, Perfect 10 has effectively 6 conceded that it has not identified the specific documents within its production that 7 supposedly contain these answers, as required by Rule 33(d).3 8 9 10 D. Perfect 10's Alleged DMCA Notices Do NOT Answer Interrogatory Nos. 3 and 11. Perfect 10 now claims for the first time that its alleged DMCA notices

11 somehow provide a complete answer Google's Interrogatories. Jt. Stip. at 50. They 12 do not. Though Perfect 10 does not name Rule 33(d), Google presumes this reference 13 to documents is an attempted invocation of the Rule, and is wholly insufficient. 14 Interrogatory Nos. 3 and 11 request (1) the image Perfect 10 claims was infringed, (2) 15 the copyright registration number corresponding to that image, (3) the location of the 16 allegedly infringing image, (4) the date of the alleged infringement, (5) any alleged 17 DMCA notice identifying the alleged infringement, and (6) any damages from the 18 infringement. Perfect 10's alleged DMCA notices only purport to identify alleged 19 infringements;4 they do not contain corresponding copyright registration numbers. 20 21 22 23 24 25 26 27 28 -3Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM

Moreover, Perfect 10's very premise--that Google must answer its own interrogatory--is wrong as a matter of law. 3 Perfect 10 objects that Google seeks a "compil[ation]" of documents. Jt. Stip. at 51. This is incorrect. Google seeks identification of the infringements Perfect 10 asserts in this case. Perfect 10 can identify those infringements with a narrative response, or a Rule 33(d) response. Perfect 10 has done neither. 4 Perfect 10's purported DMCA notices are fatally defective, and do not even properly identify the alleged infringements of Perfect 10's alleged copyrighted images (let alone the other information called for by these Interrogatories). Google will be filing a dispositive motion regarding this issue in due course.

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1 Nor do they identify the specific images allegedly infringed, the dates of alleged 2 infringements, or any resulting damages. See http://www.chillingeffects.org/dmca 3 512/notice.cgi?NoticeID=2306 (sample purported DMCA notice). Perfect 10's latest 4 excuse for not responding to these interrogatories fails as did the excuses before it. 5 6 E. Perfect 10's Additional "Spreadsheets" Are Also Non-Responsive. Perfect 10 also claims that it "is continuing to work on excel spreadsheets for

7 some of the more significant infringing websites [that] will list by infringing website, 8 and by model, the number of infringements of Perfect 10 copyrighted images of that 9 model on that website," and that it "believes that this will be the most efficient way to 10 prove its case at trial." Jt. Stip. at 50. Perfect 10 is mistaken. These spreadsheets 11 most certainly will not prove Perfect 10's case at trial. Without identifying copyright 12 registrations corresponding to images, Perfect 10 cannot establish that it owns valid 13 and enforceable copyrights, that it is eligible to sue to enforce those copyrights, or 14 that it is entitled to statutory damages. See 17 U.S.C. § 412. Moreover, Perfect 10 15 cannot merely state that there are X number of alleged infringements on any 16 particular website (as it apparently intends to do); it must demonstrate that this is the 17 case, that it holds valid registrations for those images, and that it provided Google 18 with a DMCA-compliant notice regarding same (among other things). The additional 19 spreadsheets will establish none of this. Perfect 10 should devote its time to 20 answering these Interrogatories, instead of creating more useless spreadsheets that 21 Perfect 10 has admitted do not answer them. 22 23 24 F. Perfect 10 Admits It Has Provided Similar Interrogatory Answers In Prior Litigation--and Has No Excuse For Not Doing So Here. Perfect 10 admits that it generated a chart containing the information Google

25 seeks by its Interrogatory Nos. 3 and 11 in the case titled Perfect 10 v. Net 26 Management. Perfect 10 claims that it could not do the same here because there were 27 fewer infringements at issue there, but that distinction is hollow. Contrary to Perfect 28 10's representations (see Jt. Stip. at 52), Perfect 10 did not allege infringements in the Case No. CV 04-9484 AHM (SHx) [Consolidated -4with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM

1 "hundreds" in that case; it alleged "thousands of images from ... websites ... 2 constituting infringements of Perfect 10's copyrights." See Herrick Decl., dated 3 August 14, 2008, at Ex. F, pg. 7 (emphasis added). Moreover, any difference in scale 4 is irrelevant here. As it showed in Net Management, Perfect 10 knows how to 5 properly answer Google's Interrogatories. Indeed, if Perfect 10 had begun responding 6 when Google first served them, Perfect 10 would be done by now. 7 8 G. Perfect 10's Request For Sanctions is Improper. In its portions of the Joint Stipulation, Perfect 10 claims Google should be

9 sanctioned for bringing the present motion. Jt. Stip. at 6, 64. Perfect 10 cites no 10 authority whatsoever in support of this frivolous "request." There is nothing 11 sanctionable about demanding responses to legitimately propounded interrogatories 12 going to the heart of the plaintiff's case. Nor is Google's motion "duplicative" of 13 anything--this Court has never considered Perfect 10's supplemental response to 14 Interrogatory No. 3 or its response to Interrogatory No. 11. Similarly, there is 15 nothing improper about Google coordinating the timing of its motion with Amazon's 16 motion, which it did for the court's convenience, since judicial economy will be well17 served by hearing the motions together. Both Amazon and Google have a right to be 18 heard on this issue, and to represent their own interests in motion practice. Perfect 19 10's request for sanctions should be denied. 20 21 Conclusion Google's Interrogatory Nos. 3 and 11 are proper. Perfect 10 concedes it has not

22 answered them, and that it knows how to answer them. Google's motion to compel 23 further responses should be granted. 24 DATED: August 25, 2008 25 26 27 28 -5Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE'S SUPPLEMENTAL MEMORANDUM

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Rachel M. Herrick Rachel M. Herrick Attorneys for Defendant Google Inc.