Perfect 10 Inc v. Google Inc et al

Filing 419

DECLARATION of JEFFREY N. MAUSNER IN OPPOSITION TO GOOGLE'S MOTION FOR SCHEDULING ORDER WHICH WOULD DELAY PERFECT 10 FROM FILING ITS MOTION FOR SUMMARY JUDGMENT, in Opposition to Amended MOTION for Order for Schedule for Filing Dispositive Motions Amended Notice of Motion and Amended Motion for Order Setting Schedule for Filing Dispositive Motions #411 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. Case No. CV 04-9484 AHM (SHx)

DECLARATION OF JEFFREY N. MAUSNER IN OPPOSITION TO GOOGLE'S MOTION FOR GOOGLE, INC., a corporation, SCHEDULING ORDER WHICH WOULD DELAY PERFECT 10 Defendant. _____________________________ FROM FILING ITS MOTION FOR SUMMARY JUDGMENT Before Judge A. Howard Matz Date: June 1, 2009 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

Declaration Of Jeffrey N. Mausner In Opposition To Google's Motion For Scheduling Order Which Would Delay Perfect 10 From Filing Its Motion For Summary Judgment

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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: I am a member of the State Bar of California and admitted to practice before this Court. I am counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of a portion of the Court's September 25, 2008 Order, in which the Court set "objectives -i.e., summary judgment and settlement readiness -- [to be achieved] without `going the distance' via full-fledged, uncircumscribed discovery." Page 2. 3. Zeller: The Court: Okay. But what I am trying to accomplish, Mr. Zeller, is to get you the discovery that is essential and no more, not different kinds of discovery. Now not to preclude you from it, not to say that at no time would you have the chance to compel and to get a judge to agree that Perfect 10 should be compelled to provide other discovery, but at the current time and under this very perhaps innovative ­ I've come up with the idea myself. I'm not sure that it has ever been done elsewhere, but maybe it has. At this stage, that's all you're going to be confined to. You are not going to be able to seek other stuff, and Perfect 10 is not going to be compelled to give it, and whatever they think they need from you for the first stage is all ­ once I'm satisfied that they have a right to it for the first stage, that's all they can get. What's so bad about that? Transcript of hearing, October 6, 2008, page 18, line 4 ­ 19, emphasis added. A true and correct copy of this portion of the transcript is attached as Exhibit B. 4. Attached as Exhibit C is a true and correct copy of a letter from Google's attorney Rachel Herrick Kassabian to Jeff Mausner dated May 1, 2009, in which she states: "Please let us know if Perfect 10 will stipulate that
1 Declaration Of Jeffrey N. Mausner In Opposition To Google's Motion For Scheduling Order

On October 6, 2008, a status conference took place. The following

colloquy took place between the Court and Google's lead counsel Michael

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each party may take up to 45 depositions. If Perfect 10 is not willing to agree to additional depositions, please consider this letter pursuant to the pre-filing requirements of the Local Rules in advance of a contemplated Google motion for leave to take depositions in excess of the 10 deposition limit." 5. Google has served 229 document requests, 18 interrogatories, and 962 requests for admissions. Google has filed pending discovery motions consisting of more than 550 pages, not even counting declarations and exhibits. 6. Attached as Exhibit D is a true and correct copy of the Order Denying Ex Parte Application of Mattel, Inc. to Enforce Subpoena and Order Determining Amount of Attorney's Fees in Mattel, Inc. v. Walking Mountain Productions, No. C 01-0091 MISC WHA, in which Mr. Zeller also acted as lead counsel, and his firm, Quinn Emanuel was sanctioned for abusive discovery and "unwarranted oppressive tactics." The Ninth Circuit affirmed the award of sanctions, in Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792, 813-14 (9th Cir. 2003), holding that much of the requested discovery had "no bearing on this litigation" or "no relation to this litigation," and that the subpoena was "abusively drawn." Id. at 813. The district court, as quoted by the 9th Circuit, had further found that "...[n]o attempt had been made to try to tailor the information request to the immediate needs of the case," that "...the two subpoenas were served for the purpose of getting the museums to exert pressure on the witnesses not to testify" and concluded that "...the Subpoena was `served for the purpose of annoying and harassment and not really for the purpose of getting information.'" Id at 813-814. 7. On May 5, 2009, Dr. Zada and I discussed Perfect 10's contemplated motion for summary judgment with Google's attorneys. We informed them that Perfect 10's motion would be based on a sample of images, that the sample would consist of less than 50 images, and that there were currently 13 images in the sample.
2 Declaration Of Jeffrey N. Mausner In Opposition To Google's Motion For Scheduling Order

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8.

At the status conference on October 6, 2008, the following

colloquy took place between the Court and me: THE COURT: Haven't you established your theories of liability? MR. MAUSNER: Well, the one that he mentioned, I think, is a good one. The pay sites don't have the URLs of the individual images. We think our notice was the best notice you can give in that situation where we give the URL of the website and the actual picture, and we've also given instructions for how you locate that picture in the website. So the question becomes is that sufficient notice to the defendants to allow them to locate the infringing image and remove access. They have said in that situation they're not going to remove it. We think that they should remove it. So that's an issue that Your Honor can decide on summary judgment. THE COURT: Okay. I see what you're talking about. Transcript of hearing, October 6, 2008, page 37 lines 10 ­ 24. A true and correct copy of this portion of the transcript is attached as Exhibit B. 9. 10. Attached as Exhibit E is a true and correct copy of the letter from Attached as Exhibit F is a true and correct copy of a portion of the Jeff Mausner and Michael Zeller to Judge Hillman, dated November 14, 2008. transcript of the hearing on Perfect 10's Motion for Preliminary Injunction, on November 7, 2005. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed on May 17, 2009, at Los Angeles County, California.

Jeffrey N. Mausner ______________________________ Jeffrey N. Mausner

3 Declaration Of Jeffrey N. Mausner In Opposition To Google's Motion For Scheduling Order

Exhibit A

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

Document 363

Filed 09/25/2008

Page 1 of 7

O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

Present: The Honorable Stephen Montes Deputy Clerk

A. HOWARD MATZ, U.S. DISTRICT JUDGE Not Reported Court Reporter / Recorder Tape No. Attorneys NOT Present for Defendants:

Attorneys NOT Present for Plaintiffs:

Proceedings:

IN CHAMBERS (No Proceedings Held)

The Court has considered the parties' responses to the Court's minute order dated August 20, 2008 concerning discovery disputes and the appointment of a discovery master. The Court has also considered the parties' contentions and concerns regarding a variety of issues arising from the August 18, 2008 scheduling conference and the August 27, 2008 telephonic conference, including the setting of trial dates for the Google and Amazon cases. The Court does not intend to appoint either a technical advisor or a discovery master at this time. The parties in all these cases somehow have succumbed to the all-too-frequent tendency of litigants and lawyers to get sidetracked. That is particularly regrettable in lawsuits, such as these, that are complicated, technology-driven and potentially farreaching.1 For the Court to manage these cases in a standard fashion, such as to treat the pending discovery motions as if they were commonplace disputes, would not advance the goal of enabling the parties either to ready these cases for Rule 56 determinations or for

There are other considerations that compound the difficulties. Plaintiff's counsel, for example, often complains about the supposedly unfair burdens that the Goliath-like defendants subject him to. And perhaps he is right that in certain respects their strategy may be to overwhelm him. Yet Perfect 10 may have invited those problems with its sweeping claims and its own conduct in the course of discovery.
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Case 2:04-cv-09484-AHM-SH

Document 363

Filed 09/25/2008

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O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. CV 04-9484 AHM (SHx) CV 05-4753 AHM (SHx) CV 07-5156 AHM (SHx) PERFECT 10, INC. v. GOOGLE, INC., et al. PERFECT 10, INC. v. AMAZON.COM, INC., et al. PERFECT 10, INC. v. MICROSOFT CORPORATION Date September 25, 2008

Title

meaningful settlement talks.2 Given the foregoing problems, as well as the enormous, ever-expanding number of the copyrighted images that Perfect 10 claims were infringed, it is necessary and appropriate for the Court to manage these cases differently. Therefore, in the exercise of its inherent and statutory authority to administer the rules of discovery in a manner that will "secure the just, speedy, and inexpensive determination of every action and proceeding," Fed. R. Civ. P. 1, the Court intends to require the parties to negotiate in good faith a method or approach that will enable them to assess the strengths and weaknesses of their respective overall "cases" and contentions based on a sample of the key pertinent facts. In other words, the parties will take an approach comparable to that of a recognized, impartial expert who uses surveys and statistical analyses to project the extent (if any) of customer satisfaction with a product or, in the trademark context, the extent of confusion among consumers as to the source or origin of goods. From the information that the parties obtain, exchange and organize, they should be able to extrapolate reliable conclusions as to where they think they can go, or want to go, from there. Accordingly, the Court has determined that a further conference with counsel in all three cases is necessary. Accordingly, the Court ORDERS the parties in all these cases to appear for a status conference on October 6, 2008 at 1:30 p.m.. The broad purpose of the conference is to explore ways for the parties to achieve the foregoing objectives -- i.e., summary judgment and settlement readiness -- without "going the distance" via fullfledged, uncircumscribed discovery. At the conference, the Court will invite counsel to address the following preliminary or tentative findings and proposals, which will probably be incorporated into a special Case Management Order that will issue at the same time as the scheduling

It is highly improbable that there will be a trial in any of these cases. That is so obvious that it need not be belabored.
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Exhibit B

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 Cou