Perfect 10 Inc v. Google Inc et al

Filing 384

TRANSCRIPT for proceedings held on 8/27/08 4:06 PM. Court Reporter Cindy Nirenberg, [e-mail]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter 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 12/16/2008. Redacted Transcript Deadline set for 12/26/2008. Release of Transcript Restriction set for 2/23/2009. (Nirenberg, Cindy)

Perfect 10 Inc v. Google Inc et al

Doc. 384

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. ) ___________________________________) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) PLAINTIFF, ) ) vs. ) No. CV05-4753-AHM(SHx) AMAZON.COM, INC., ET AL., ) DEFENDANTS. ) ___________________________________) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) PLAINTIFF, ) ) vs. ) No. CV07-5156-AHM(SHx) MICROSOFT CORPORATION, ) DEFENDANT. ) ___________________________________) REPORTER'S TRANSCRIPT OF TELEPHONIC PROCEEDINGS LOS ANGELES, CALIFORNIA WEDNESDAY, AUGUST 27, 2008

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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
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 GOOGLE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW THOMAS NOLAN, ATTORNEY AT LAW 865 S. FIGUEROA STREET 10TH FLOOR LOS ANGELES, CA 90017 213-443-3000 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: RACHEL M. HERRICK, ATTORNEY AT LAW 555 TWIN DOLPHIN DRIVE SUITE 560 REDWOOD SHORES, CA 94065 650-801-5000

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
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL (CONTINUED):

FOR THE MICROSOFT DEFENDANTS: WINSTON & STRAWN BY: ANDREW P. BRIDGES, ATTORNEY AT LAW JENNIFER A. GOLINVEAUX, ATTORNEY AT LAW MATTHEW A. SCHERB, ATTORNEY AT LAW 101 CALIFORNIA STREET SAN FRANCISCO, CA 94111 415-591-1506

ALSO PRESENT:

STEPHEN J. HILLMAN, U.S. DISTRICT COURT MAGISTRATE JUDGE

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 THE CLERK: LOS ANGELES, CALIFORNIA; WEDNESDAY, AUGUST 27, 2008 4:06 P.M. ----Calling Item Number 2, CV04-9484, Perfect

10, Inc. versus Google, Inc., et al., related to CV05-4753, Perfect 10, Inc., versus Amazon.com, Inc., et al., related to CV-07-5156, Perfect 10, Inc. versus Microsoft Corporation. Counsel, state your appearances, please. MR. MAUSNER: plaintiff, Perfect 10. MR. BRIDGES: This is Andrew Bridges with Jennifer Good afternoon. Jeff Mausner for the

Golinveaux and Matthew Scherb for Microsoft Corporation. THE COURT: MR. MALUTTA: Anyone here from Amazon? Yes. This is Anthony Malutta for

Amazon.com and related defendants. THE COURT: MR. ZELLER: And for Google? Yes. Good afternoon, Your Honor. This

is Mike Zeller for Google, and with me are Rachel Herrick and Tom Nolan. THE COURT: Good afternoon to all counsel.

Judge Hillman, are you on the line as well? JUDGE HILLMAN: THE COURT: Yes, I am. This is, of course, Judge Matz,

Okay.

and this matter is being transcribed by our court reporter. I granted the request of counsel for Microsoft that
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 we enable them to weigh in on the matters that were discussed and incorporated into the transcript for the August 18th proceeding, and I'm happy to do so, and that's Microsoft's right, so this is your opportunity to let us know your initial views. MR. BRIDGES: Bridges speaking. First, I thought I would fill the Court in a little bit on the status of the Perfect 10/Microsoft case, and then I would like to offer Microsoft's observations on three points that I think were raised at the status conference in the Google case -- actually, I guess four points. And then I'd like to Thank you, Your Honor. This is Andrew

add an observation on the fifth point that relates to one of the other points. THE COURT: Okay. Why don't you go first, and tell

us all of those -- your positions on all of those matters, and then depending on what you say, I'll invite responses from the other lawyers. MR. BRIDGES: Thank you, Your Honor.

As to status, first, we did receive -- I'm not sure. It was maybe a month or so ago -- a first tranche of document production by Perfect 10. drives. I think it consisted of two hard

There is a lot of material on the drives. Right now, we don't have any document disputes, but

it is taking us a while just to get through it and to
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 understand it before we know whether there are any particular disputes. I would say that we do -- and we've accepted these hard drives as the production for now because we want to get our hands on something. They are in a variety of files. They

are really something akin to a mirror image of what the Court might have on its computer hard drive at the office or at home. Our goal has been to try to avoid disputes wherever possible and to live with whatever we can live with, and, frankly, we're still trying to figure out if we can live with it. But it's premature certainly for us to haggle about it. One concern we've always had, which is borne out a little bit in the document production, is that this case involves a lot of documents. It is important to know what It is important as

documents have and have not been produced.

documents become relevant to know exactly where we can find them. Traditionally, in every piece of litigation I've had in the past, that problem is solved by the use of document numbering, and so -- I'm rather agnostic as to format. trying to deal with the format in everything that we've received, but I just want to point out that a major issue is when a deposition exhibit is identified, it's much easier to know that it's document Number 1416 than to know, oh, on hard drive B, if you look in file A, sub-file J, sub-sub-file R,
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

We're

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 sub-sub-sub-file Y, and going on down, the third picture from the left on the 82nd page is the one we're talking about. So that's the concern I have just in terms of efficient management of the case. The lack of control

numbering of what is being produced by Perfect 10 is a problem. THE COURT: Okay. So you are referring to something

that would be the electronic equivalent of a Bates stamp? MR. BRIDGES: Exactly, Your Honor.

A similar, but related issue -- I'm not as bothered by it -- is the question of how do we know which particular documents are confidential and which ones are not if there is not some individual designation on individual documents. THE COURT: Well, do you have a Confidentiality

Agreement or a Protective Order in place with Perfect 10? MR. BRIDGES: There is a Protective Order, but the

difficulty is how do things reasonably get identified as confidential and protected by the confidentiality order, because it just cannot be done at the hard drive level. It

needs to be really, as in typical litigation, at the document level and possibly the file level. But the problem is anytime you allow confidentiality designations too broadly, there is an enormous cost in resources, time and money to deal with filing things under seal that have been over-designated. And then there is an enormous

cost of coming back to negotiate away over-designations of
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 it. MR. BRIDGES: And it's very targeted. We are trying received. And another status item is that we do have a fairly narrow motion to compel a substantive response to one interrogatory and to compel revisions to responses to requests for admission. That part is very straightforward. confidentiality. So that's a concern.

One observation I'd like to make is that negotiations with Perfect 10 are not easy. that. So that's the status of the documents that we've And that's as far as I'll go on

It's essentially that Perfect 10 adds several sentences of self-serving language to its responses to try to, in our view, inflame the jury if an admission were to be presented to the jury. THE COURT: We just need to strike that. Wait a minute. I missed something. Did

you say you currently have pending -- you already filed some motion that's now pending before Judge Hillman? MR. BRIDGES: That's right. It's been set for the

same date as the other motion to compel interrogatories. JUDGE HILLMAN: I have that motion. I'm looking at

to keep disputes to a minimum. THE COURT: MR. BRIDGES: So that's set for September 8th? Yeah, that's correct, Your Honor.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 THE COURT: MR. BRIDGES: And exactly what does it seek? It seeks a substantive answer to one

interrogatory, and it seeks essentially to strike a lot of surplus verbiage and admissions responses where -- one of the responses is, for example, "Denied because Microsoft is the biggest infringer in the world." THE COURT: MR. BRIDGES: Okay. I get the point. You

We don't need the extra setups.

either admit or deny, but we don't need all sorts of editorializing, and it's a motion to trim out that editorializing from the responses. THE COURT: Okay. If I may say so, Judge Matz -- and I

JUDGE HILLMAN:

have not studied this motion nor have I received supplemental memoranda -- but the one interrogatory is what I have termed a mega request. But I think Mr. Bridge's characterization of the

balance of the motion is accurate, and it doesn't need a lot of work on my part. MR. BRIDGES: interrogatory. I will say this about the

We are trying to bring order out of chaos as we And the chaos

get this ready -- get this case ready for trial.

I perceive is this, that there is a lot of information that Perfect 10 is very, very willing to give. It frequently furnishes masses of information, but what we have not received is useful information that allows us
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 to tie related pieces of information together. And our interrogatory asks for every work for which Perfect 10 seeks remedies -- and it's seeking remedies of $150,000 in statutory damages per work. For each work, we

simply want the registration number and information about the chain of title, who the persons are depicted in the work claimed, and stuff like that. It's stuff that could be on a spreadsheet. And it

becomes a mega request only to the extent it is a mega case because it essentially -THE COURT: MR. BRIDGES: THE COURT: Okay. Well, you know --

-- information per claim for $150,000. Okay. Now, Mr. Bridges, you may not have

understood what my intention was on this call. What you're telling me is informative, but it's going beyond what I need to know because -MR. BRIDGES: THE COURT: Okay. -- it's beginning to sound too much like

an argument on the merits of your motions before Judge Hillman. I just want to know what the status of things are. don't need to know precisely why you are going to be seeking the relief or what you've been incorporating into your papers. So please proceed on that basis. MR. BRIDGES: I appreciate that, Your Honor. So let I

me then share observations on five points.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 me. concrete. First is on the question of coordination. I think

there are certainly areas in which it is in everybody's interest to coordinate activities. And that, I think, would be

especially true on the timing of things. I do believe that the more the various defendants in the three cases can coordinate, the better, but we do need to recognize that there are some significant differences between the cases. And one fear I have is that sometimes coordinating cases that already have some degree of complexity which have some similarities but are nevertheless different, that a little too much coordination adds to the complexity and that itself creates problems that less coordination might not cause. THE COURT: Okay. Let's be a little bit more

At the hearing -MR. BRIDGES: THE COURT: I'll -Listen to me, please. Don't interrupt

At the hearing on the 18th, I said that I wanted the

deposition of Zada to be coordinated, that each defendant that Perfect 10 is suing would have up to two days, up to seven hours each of those days, to ask the questions of Zada, that it was appropriate that the defense lawyers were to coordinate the questions, that he wasn't going to be subject to questions that had already been asked that had a generic application, stuff like that. You saw that, right?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 example. MR. BRIDGES: THE COURT: MR. BRIDGES: THE COURT: MR. BRIDGES: Yes, Your Honor. Do you have a problem with that? Yes, Your Honor, I do. What's your problem? The coordinating of questions, for

I've defended one deposition in the Microsoft case

where from my perspective the plaintiff's counsel asked the same question ten times. That's par for the course. There may be times where Microsoft wants to ask things in a very similar way to the way Google's lawyer asks it, but we have a different point to make, and we'd like to be able to ask it as we'd like to ask it without having to negotiate with Google over who gets to ask it. And then if we ask it and Mr. Mausner thinks it's duplicative, I'm concerned about his having a court order to waive in my face and say, "Back off, Mr. Bridges. court order saying you can't do this." It seems to me we -- if there is a concern -- there is a natural limit to the burden caused by the questioning that the time limits themselves impose. And if a deposing party You've got a I made asked and answered objections.

wants to waste precious time with duplicative questions, it may be because -- not that -- I don't have any motivation to keep Dr. Zada in the witness chair longer. I have a desire to get

through a mass of material the way I'd like to get through it.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 THE COURT: MR. BRIDGES: Okay. But don't --

Requiring us to go and sit down with

counsel days before to allocate questions actually just increases burdens substantially and sows seeds of discord, and we're trying to litigate this in a way that avoids sowing seeds of discord. THE COURT: I don't necessarily see it that way, but

I'm not going to be making final rulings on this phone call. But off the top of my head, if there was an infringed picture, a photograph, and Google's lawyer went first and asked Dr. Zada a question about the particular injury or damage sustained as a result of the publication of that photograph on a Google server, and he put it in particular, precise language, there would be no barrier to you asking in the very same words but substituting the word Microsoft the same question to Mr. Zada. That should have been implicit and clear in what I was off the top of my head looking for. If it was a question of damages and it wasn't just some kind of routine maximum statutory damage theory that Mr. Mausner was pursuing and the damages might differ from Google -- between Google -- or from Google to Amazon and Microsoft, each would have the right to have a particular question and a direct answer applicable to that particular alleged infringer.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 Just keep that in mind. colloquy about it right now. I don't want to have a

I'm just giving you an

opportunity to be heard so I and Judge Hillman can determine just what is the most efficient and most appropriate way to proceed. MR. BRIDGES: THE COURT: Okay. I appreciate that, Your Honor. I got your point.

Now, what's your next point? The second point is with respect to a

MR. BRIDGES:

discovery master, we are not, apparently, at this point charting out the same number of depositions and the like as Google. disputes. Microsoft believes that in its case, frankly, it would prefer not to have a discovery master. apparent need for it in the Microsoft case. We do fear that it then creates essentially a three-level discovery review process. And that may be There's no We have not at this point had major discovery

appropriate management of it in the Google/Amazon cases, I can't speak to that. But the Microsoft case to us does not

feel as though it has sufficiently vexing discovery problems that would cause it to need a master. It certainly would not want to be paying for any share of a discovery master that relates to disputes involving Google or Amazon, but I don't even -- I'm sort of reluctant to
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 though. mediator. welcome it. I have to say we are very pessimistic that the Microsoft case will settle, but we certainly agree that every effort should be made. Subject to a conflicts checks, Judge even mention the payment part because we just don't believe that there is a need in the Microsoft case for a discovery master. That's the second point. THE COURT: When you used the words three levels of

review, what did you mean? MR. BRIDGES: Well, presumably the discovery master

would report -- well, I guess the discovery master would report to you, Judge Matz, not to Judge Hillman. two levels of review, then. I was thinking the discovery master might report to Judge Hillman, and there would be three levels with the district judge, the magistrate judge and the master. would be a concern. That So it would still be

But we just don't believe that we have

significant enough of discovery disputes at this point to need a master. The third point is on the Court's question of a Subject to the conflicts checking, Microsoft would

Lynch would be acceptable. Microsoft has a couple particular comments here, If the case is to be mediated, it is better to make

the effort very promptly rather than late in the game because
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 everybody is going to be spending a lot of money. Second, in our view, to reach a principled result or for the parties to negotiate from principled positions in any mediation, Microsoft really needs information about -- not about statutory damages claims, because I think, frankly, we all know that statutory damages numbers sort of get pulled out of the air, but Microsoft would really want to know going into a mediation what actual damages Perfect 10 calculates and how it calculates them, and it would ask that Perfect 10 furnish that information to the mediator and to Microsoft in advance of a mediation. And, frankly, we also believe that in order to engage in principles in negotiation, our response to Interrogatory Number 1 is important. THE COURT: MR. BRIDGES: Okay. What's your next point?

The next point is that you had

mentioned in the transcript that Dr. Zada's deposition, the six days would take place in one fell swoop. We had earlier gotten an order from the Court in the Microsoft case that we would have two days of Dr. Zada. That's

unchanged, but we had gotten one day early and one day late, and we do believe that two phases would be important, at least from Microsoft's perspective. THE COURT: Okay. I don't remember saying that it If I said it, it was improvident

had to be six days in a row.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 to say it because I was not out to micromanage something. there could be all kinds of reasons, not just the need to prepare in light of what is disclosed on one day for the next time, but counsel's schedule and the like. So if I said it had And And

to be six consecutive days, don't take that literally.

that's true for all the lawyers, including Mr. Mausner, of course. What's the next point? MR. BRIDGES: The next point is the -- I think right

now we have -- one thing that inhibits coordination of the three defendants in the three cases is that we have a separate Protective Order in each case pertaining to each case. I guess

maybe the Google/Amazon had one Protective Order together. We would like some provision that it would not be a violation of a Protective Order in any of the three cases for the defendants to share with each other materials from or pertaining to Perfect 10. uncontroversial. But essentially we would like to have materials designated as confidential by Perfect 10 in one case able to be shared by counsel in the three different cases. I anticipate we are probably all getting the same things, but to the extent we're not, we may need to identify it as part of our coordination. That's really my final point.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

I would expect that to be

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 THE COURT: All right. Now, as I recall -- I don't

have a lot of materials here before me -- I granted an extension of the time to respond to my orders relating to proposing individuals who might be qualified to serve as special masters, and that now is due on September 4th, right? MR. BRIDGES: Honor, yes. THE COURT: Well, you've already let us all know your I think that's the correct date, Your

position, but you're not exempt from responding to that, so -MR. BRIDGES: There was a noise. THE COURT: I'm sorry. I think somebody called.

I didn't hear the Court's last sentence. I said you are not exempt from responding

on a timely basis, meaning September 4th, to that portion of what I mentioned at the Court hearing. MR. BRIDGES: THE COURT: MR. BRIDGES: THE COURT: I understand that, Your Honor. This is not in lieu of that. I understand that, yes. Mr. Mausner, I'll give you a chance to

respond, but keep in mind the guidance I tried to give Mr. Bridges. I don't want this to be oral argument on the merits

of pending motions. MR. MAUSNER: Okay. One thing I'd like to say about

actual damages, Perfect 10's actual damage, at least the main claim or one of its claims depends on information from the defendants.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 It's based on the number of lost potential customers, and the only way we can get that is from knowing the number of searches on Perfect 10 models, and clicks that are done on those images. time. So it's not information that we have at this

It's information that we have to get from the

defendants. You know, just very quickly on these responses to requests for admission, you know, we modified -THE COURT: Okay. No. I'm going to cut you off, Mr.

Mausner, because -- I'm not trying to be unfair to you and keep this in one direction only. Just the opposite. I didn't

really benefit from Mr. Bridge's preview on the merits of that, and I won't benefit from yours. Judge Hillman will. MR. MAUSNER: THE COURT: Okay. So you don't have to go into that. Maybe at the appropriate time

Now, I will say a couple of things to all -- well, before I do -- because I think we are approaching the end of this conference call -- do you wish to be heard about anything, Mr. Malutta? MR. MALUTTA: THE COURT: MR. ZELLER: MR. MAUSNER: Not at this time, Your Honor. How about you, Mr. Zeller? No, Your Honor. Your Honor, there is one other matter

that came up involving A9's motion for summary judgment.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 They filed their motion for summary judgment. said they were going to file it on the 22nd. They

They filed it on

the 25th after close of business, and it contains three separate issues in there, which we think is directly contrary to the Court's order that separate issues are to be made in separate motions. And it is going to be very difficult to

respond to that in exactly or a little bit less than two weeks that they provided. We've had correspondence on this, and they will not agree to separate the motions. And I think we will probably

need an order either that they separate out the motions so that we have more time to file our opposition to it -THE COURT: All right. Well, make that application,

and obviously it will have to be on an ex parte basis if you can't work it out. Make it to me. Okay. Well, I was hoping we could do

MR. MAUSNER:

it just over the phone now. THE COURT: Well, I don't want to waste the time of I will be willing to

Judge Hillman and the other two lawyers.

hear at least a little bit from you and from Mr. Malutta after I excuse the others. fees about that. Anything else, Mr. Mausner? MR. MAUSNER: THE COURT: No. All right. Well, here's a couple of They don't have to waste time and incur

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 calendar. That's acceptable to you, Judge Hillman? JUDGE HILLMAN: Yeah. I will still have under items that I want to mention that are really critical on all the cases and as to all the lawyers. First of all, it is not feasible, and I don't think it's even advisable, to subject Judge Hillman to proceeding on the scheduled basis with respect to the pending discovery motions, some of which may qualify as so-called mega motions -and I believe that those are currently scheduled for argument on September 8th -- so I'm authorizing Judge Hillman to take those off calendar, and he will communicate with the moving parties and all the parties as to whatever is pending before him about a different hearing date and maybe a different schedule, depending upon what I do with respect to the possible appointment of a discovery master, and that won't be something that I turn to until after I have had a chance to read whatever you file on September 4th. And that September 4th filing date will also require information about just what is pending in terms of discovery motions and what's planned and anticipated. So September 8th is out, and it's being taken off

submission the motion regarding attorneys' eyes only in the Google case. And I also think there is another one floating

around that hasn't reached me regarding that London account,
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 yet. me. but that hasn't been refiled as a joint stipulation, so I don't know what will happen with that. THE COURT: British court? JUDGE HILLMAN: Right. Right. That is not before me You mean the letter of request to the

It was before you, and then it has not found its way to But the three that you mentioned on the 8th, I will take

off calendar for that day. THE COURT: Okay. The second point I want to make, There

counsel, is that I haven't seen some of these motions.

are special requirements obviously, and nobody is more familiar with those than Judge Hillman, but I assume all these lawyers -- they're very good, they're very experienced, they're aware of local rules and court requirements under Rule 37, but make sure that the fairly recent provisions relating to discovery and motion practice involving electronically stored information are scrupulously complied with. And if they haven't been, and if that were a barrier to whoever decides those motions making an informed and rule-compliant decision, then don't be surprised if the motions are rejected on that basis. I don't know for sure exactly who's filed what and to what extent there is or is not compliance, but there needs to be very exacting and scrupulous compliance on a case like this where so much information is stored electronically.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 right now. MR. MAUSNER: Okay. And then are the lists of was what? MR. MAUSNER: JUDGE HILLMAN: Whether our supplemental briefs or -I see no reason for those being filed points? And I won't say more than that. finger at any one firm. I'm not pointing the

Maybe no firm has a basis to have a

finger pointed at all, but I'm just pointing that out. Now, in order to address this possible question of the three motions packed into one, I propose to excuse counsel for Google, counsel for Amazon and Judge Hillman, and I may, at least briefly, hear from -- no, not counsel for Amazon because that would be you, Mr. Malutta. I would excuse counsel for Microsoft and Google and listen to Mr. Malutta on this issue of the summary judgment motions. Anybody have a problem with that? MR. MAUSNER: Your Honor, may I just clarify two

Our supplemental briefs regarding the discovery

motions are not going to be due until it is rescheduled? Is that your contemplation, Judge Hillman? JUDGE HILLMAN: Just the last part of that sentence

pending and contemplated discovery, are those also extended to September 4th, Judge Matz? THE COURT: What was that?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 MR. MAUSNER: this Friday. We had discovery lists that were due on

Are those also extended to September 4th? I didn't contemplate extending them, no. Okay. We'll file those.

THE COURT: MR. MAUSNER: THE COURT:

The earlier I have a chance to see and

Judge Hillman has a chance to see what we're looking at, the better. MR. MAUSNER: THE COURT: Okay. So that date is due.

That's a date you can comply with, counsel for Microsoft, right? MR. BRIDGES: THE COURT: Yes, Your Honor. Okay. All of you are still required to

file that by Friday -- or on Friday. MR. MAUSNER: THE COURT: Thank you, Your Honor. Okay. So why don't you stay on the

phone, please, Mr. Mausner, and you stay on the phone, Mr. Malutta, and the others are excused, and thank you for your participation. MR. BRIDGES: THE COURT: today probably. JUDGE HILLMAN: MR. SCHERB: Winston & Strawn. Thank you. Thank you, Your Honor. Judge Hillman, I will call you later

This is Matthew Scherb from Microsoft,

I was the one who's arranged the conference

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 call, so I'm going to need to stay on the line so everyone else can as well. I won't participate, but I will be here

listening, if that's all right with you. THE COURT: MR. SCHERB: MR. MAUSNER: I don't have a problem with that. Thank you, Your Honor. Your Honor, it's Jeff Mausner. I sent

an email to Mr. Montes that has the information regarding this dispute. THE COURT: Well, I haven't seen the email.

Have you seen it, Mr. Montes? THE CLERK: THE COURT: No, I haven't. He hasn't seen it.

I'm looking at the table of contents -- my law clerk brought it in -- and it's a 15-page Summary Judgment Motion Memorandum as far as I can see. MR. MAUSNER: THE COURT: MR. MAUSNER: Right. That's the one you're talking about? Yes, Your Honor. One is The

There are three separate issues in there.

whether A9 is eligible for the Section 512(a) Safe Harbor.

second one is whether A9 is liable for direct infringement, and the third one is whether A9 can be liable for vicarious infringement. THE COURT: Well, I don't see that that is I don't know how many cases or how

particularly burdensome.

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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 Malutta. many principles or how many statutes or how many precedents or what level of facts -- there is a declaration of somebody named Amacker in support of that? MR. MAUSNER: THE COURT: Yes, Your Honor. Is that the only factual material that

you submitted along with an SUF, Mr. Malutta? MR. MALUTTA: we submitted. MR. MAUSNER: Well, that's actually not correct. This is Mr. Malutta. Yes. That's what

They also submitted the declaration of Mark Jansen which attaches exhibits. MR. MALUTTA: Correct. Well, I'll point out that --

this is Mr. Malutta -- that the motion is simply focused on copyright. The direct and vicarious sections are a

page-and-a-half each, and Mr. Mausner has been on notice that we are moving on these copyright claims for over two-and-a-half years. THE COURT: here assuming. Yeah, that's what I have been sitting

None of this -It's all related. The direct and

MR. MALUTTA:

vicarious, I think it's unfairly part of the claim, which is a single claim in the amended complaint for direct vicarious liability. THE COURT: Well, let me ask you something, Mr.

I'm just trying to think of a practical way to handle
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

27 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 Mausner? MR. MAUSNER: Well, I have two depositions coming up. That helps. this because I don't -- if yours were the only case and if this was the only motion and there weren't discovery motions and a lot of flurry about technical advisors and special masters, I would reject out of hand Mr. Mausner's attempt to break it up. This doesn't seem like it's inherently that burdensome. In context, it could be. So the claims of direct

infringement and vicarious infringement are not going to be divided from each other. I want those to be responded to.

The DMCA claims, which I can see being of greater concern to Mr. Mausner -- maybe I'm misunderstanding his case, but it could be very significant with respect to these other defendants who have been sued by Perfect 10. little bit different. But in any event, what's the big problem, Mr. That might be a

We've taken off the discovery motion.

We've had -- you know, there are other things that are coming up. I'm working until past midnight every night.

Here's -- a possible solution is if we got a week extension so that we had three weeks to do this. THE COURT: precedence. See, the problem is, Mr. Mausner, that you are David and you're up against Goliath. Not only are the entities that Well, I'm already going to be creating

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

28 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 more help? MR. MAUSNER: Oh, yeah. I'm trying. We just motions. your client has sued deep pocketed and large, but they have big firms representing them. I was in your position many times as a lawyer. You've had the assistance of Mitchell Silberberg before. don't know if that's something that Perfect 10 wants to consider, but you have sued all these defendants, and something's got to give. I don't want your health to be I

jeopardized and your peace of mind to be shattered, but part of the problem results from the course of action that Perfect 10 has taken. Do you have any basis to assure me that this won't be a continuing issue on case management until the end of dooms day? MR. MAUSNER: Well, I mean, I think if defendants

file motions for summary judgment, I may -- you know, I can't say that I won't need additional time on those as well. These are -- you know, they're not uncomplicated In this case, there are at least three depositions

that are implicated and exhibits and so on, so, I mean, I can't say that this is the only time that I would ever need more time. THE COURT: No, but is there a way that you can get

associated in another attorney, but he obviously isn't up to
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

29 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 speed, and, you know, we have to see how that goes. It's -- we don't have the resources that they have, and we can't just go off and hire a big firm. But, you know,

I've been trying different things to get help, and, you know, different lawyers. THE COURT: Here's what I'm going to do.

You don't have a problem with giving this lawyer an additional week, do you, Mr. Malutta? MR. MALUTTA: No. I mean, I'll point out they

already have an additional week because this was a two-week schedule already. THE COURT: I know. Well, I do that routinely in

summary judgment motions even for big firms. MR. MALUTTA: THE COURT: Okay. We're going to have a transcript of this

proceeding, so I want to make it very clear to you, Mr. Mausner, that I will grant your request. to oppose this motion. And I will not give three weeks for the reply to A9 because I don't think it needs it. It's an entirely different You have three weeks

set of circumstances when you're talking about a large and established firm and a team that Mr. Malutta is a part of. So it will be three weeks to oppose, two weeks to reply, and then I'll determine when the hearing date is. But the more important point for your planning
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

30 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 purposes, Mr. Mausner, is that you should not assume that this is going to be the routine way that I handle these things. Don't assume that at all. Go back to Dr. Zada and tell him that he's in for something because I'm not going to automatically and in every instance be able to accommodate your human concerns. not going to be able to. MR. MAUSNER: Well, I'd just ask that, you know, in I'm just

each case, you look at it and -THE COURT: want it in each case. MR. MAUSNER: THE COURT: Okay. I want you and your client to do Yeah, but I'm telling you that I don't

something to bulk up because if I look at it in each case, it's going to be the same sad story in each case, and you'll know what the result is, and it's not the way that I think I can manage these cases. I am not going to rule out a considered decision on any given occasion, but you should not assume that because I'm doing it today, even if the facts are just as compelling the next time, I'll do it. MR. MAUSNER: THE COURT: MR. MAUSNER: THE COURT: I understand, Your Honor. All right. Anything further? Bye. Thank you.

Thank you, Your Honor.

Are you still there, counsel?

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

31 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. MAUSNER: MR. BRIDGES: THE COURT:

Yes. Yes. I'm going to require that the cost of

this transcript for this proceeding be split four ways and that an order be placed with the court reporter. MR. MALUTTA: MR. MAUSNER: THE COURT: Yes, Your Honor. Okay. Thank you, Your Honor.

We're adjourned.

(Proceedings concluded.) --oOo--