Perfect 10 Inc v. Google Inc et al

Filing 540

DECLARATION of Rachel Herrick Kassabian in support of MOTION for Admissions of Plaintiff Perfect 10, Inc. ; Google Inc.'s Motion to Determine the Sufficiency of Perfect 10, Inc.'s Responses to Google Inc.'s Requests for Admission, Sets 1 and 2 #371 , MOTION to Compel Perfect 10, Inc. to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions #407 Supplemental Declaration of Rachel Herrick Kassabian in Support of (1) Google's Motion to Compel Perfect 10 to Produce Documents, to Comply with the Protective Order and to Affix Document Control Numbers to its Document Production, and (2) Google's Motion to Determine the Sufficiency of Perfect 10, Inc.'s Responses to Google's Requests for Admission filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

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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 Herrick Kassabian (Bar No. 191060) rachelkassabian@quinne manuel.com 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 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)] SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF (1) GOOGLE'S MOTION TO COMPEL PERFECT 10 TO PRODUCE DOCUMENTS, TO COMPLY WITH PROTECTIVE ORDER AND TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION, AND (2) GOOGLE'S MOTION TO DETERMINE THE SUFFICIENCY OF PERFECT 10, INC.'S RESPONSES TO GOOGLE'S REQUESTS FOR ADMISSION Hon. Stephen J. Hillman Courtroom.: Hearing Date: Hearing Time: 550 September 22, 2009 10:00 am

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,

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

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

SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

Dockets.Justia.com

1 2 3 I, Rachel Herrick Kassabian, declare as follows: 1. I am a member of the bar of the State of California and a partner with

4 Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel for Defendant Google Inc. 5 ("Google") in this action. I make this declaration of my personal and firsthand 6 knowledge and, if called and sworn as a witness, could and would competently 7 testify thereto. 8 9 10 11 12 2. Google's Continued Efforts to Meet and Confer Regarding its Pending Motion to Compel Perfect 10 (1) To Produce Documents, (2) To Comply With Protective Order, And (3) To Affix Document Control Numbers To Its Document Production. Attached as Exhibit A is a true and correct copy of a letter I sent to

13 Perfect 10's counsel Jeffrey Mausner dated August 27, 2009. By that letter, Google 14 attempted to narrow the issues remaining for decision by the Court with respect to 15 Google's pending Motion To Compel Perfect 10 (1) To Produce Documents, (2) To 16 Comply With Protective Order, And (3) To Affix Document Control Numbers To 17 Its Document Production. In response, Perfect 10 declined to stipulate to any of 18 Google's proposals, and declined to reconsider any of its positions as set forth in the 19 parties' Joint Stipulation filed May 7, 2009. Accordingly, Google's Motion remains 20 ripe for adjudication by this Court. 21 22 23 3. Cost Estimates for the Application of Control Numbers to Perfect 10's Document Production At the telephonic hearing on September 14, 2009, the Court requested

24 that the parties obtain cost estimates for Perfect 10 to apply control numbers to its 25 document production. We have done some research and confirmed that there are a 26 variety of free (or low cost) options that Perfect 10 may employ to apply such 27 control numbers to its past and future document productions. 28
SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

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First, the computer program Adobe Acrobat (version 6.0 or later),

2 which Perfect 10 has used to create most of its document production, has a free 3 "page numbering" feature that allows a user to affix sequential page numbers to all 4 Adobe PDF documents. The feature will automatically add a sequenced number to 5 each page of the Adobe files that make up the majority of Perfect 10's electronic 6 production. Additionally, all image files, Microsoft Office documents, web pages, 7 text files, and a variety of other file types can be converted to Adobe files (with 8 Adobe Acrobat's free "create PDF from file" function) and similarly numbered. 9 Because Perfect 10 has already purchased and currently uses this Adobe software, 10 Perfect 10 can affix sequential control numbers to its electronic document 11 productions at no additional cost. Attached as Exhibit B is a true and correct copy 12 of an Acrobat Support web page accessed on September 18, 2009 describing how to 13 use the free page-numbering feature in Adobe Acrobat. 14 5. Second, Adobe Acrobat Professional (version 8.0 and later) contains a 15 specific "Bates numbering" feature. Like the page numbering feature in prior 16 versions of Adobe Acrobat, the Bates numbering feature adds sequential page 17 numbers to all Adobe PDF documents in the header or footer, and also stores meta18 data regarding the page numbering in the document file, in order to assist with 19 document production in litigation. The Bates numbering feature allows sequential 20 page numbers to be added automatically to multiple PDF documents at once. It is 21 my understanding that Perfect 10 uses Adobe Acrobat Professional for its document 22 productions in this case, and it likely already has version 8.0 or later which has the 23 free Bates numbering feature. If not, Perfect 10 can upgrade to Adobe Acrobat 9.0 24 Professional for a one-time fee of $159.00. Attached as Exhibit D is a true and 25 correct copy of an adobe.com Acrobat Tutorial page accessed on September 18, 26 2009 describing how to use the free Bates numbering feature in Adobe Acrobat 27 Professional. 28
SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

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Third, there exists a variety of free software that will similarly affix

2 sequential page numbers to any PDF document without the need for any software 3 from Adobe. Attached as Exhibit C is a true and correct copy of web pages 4 accessed on September 18, 2009 describing one such free software application, 5 called "A-PDF Number." 6 7 7. Updated Chart of Unproduced Perfect 10 Financial Reports At pages 25-26 of the Joint Stipulation on Google's pending Motion to

8 Compel Perfect 10 (1) To Produce Documents, (2) To Comply With the Protective 9 Order, and (3) To Affix Document Control Numbers To Its Document Production 10 (Docket No. 408), filed May 7, 2009, Google included a chart identifying months 11 for which (based on Google's review of Perfect 10's document productions up to 12 that date) Perfect 10 had failed to produce monthly financial reports. Since May 13 2009, Perfect 10 has produced some additional financial reports. Accordingly, 14 attached as Exhibit E is an updated chart identifying the months for which (based on 15 Google's review of Perfect 10's document productions as of the date of this 16 declaration) it appears that Perfect 10 still has failed to produce monthly financial 17 reports. 18 19 20 21 8. Google's Continued Efforts to Meet and Confer Regarding its Pending Motion to Determine the Sufficiency of Perfect 10's Responses to Google's Requests for Admission (Sets 1 and 2) Pursuant the Court's direction and in hopes of resolving Google's

22 Motion to Compel responses to its Requests for Admission, last week Google 23 initiated further meet and confer efforts with Perfect 10 regarding Perfect 10's 24 deficient responses to those Requests. Unfortunately, Perfect 10 has refused to 25 withdraw any of its objections, and has further refused to provide complete and 26 substantive responses to even one specific Request at issue in Google's Motion to 27 28
SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

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1 Compel. Indeed, Perfect 10's meet and confer position is actually regressing, rather 2 than advancing toward a resolution of these issues. 3 9. Specifically, as this Court may recall, one of the issues in Google's 4 motion to compel concerns Perfect 10's refusal to answer 478 Requests for 5 Admission directed to Perfect 10's 70+ DMCA Notices. See Joint Stipulation 6 (Docket No. 372) at 337-347. This equates to an average of approximately seven 7 Requests directed to the contents and circumstances of each Notice. When Perfect 8 10 first served its objections to Google's Requests approximately 15 months ago in 9 June 2008, it stated that it would agree to answer just 100 of the 478 unanswered 10 Requests, provided that Google withdrew the remaining Requests, which Perfect 10 11 claimed were too time-consuming to answer. During meet and confer efforts in Fall 12 2008, Perfect 10 increased its offer to 150 Requests (though still providing no basis 13 for refusing to answer the remaining 328), again conditioning its offer on Google's 14 withdrawal of the remaining Requests. 15 10. During Google's latest meet and confer efforts last week, Perfect 10 16 backtracked, offering to answer just 125 of the unanswered Requests, again 17 provided that Google withdraw the remaining 353 Requests. Perfect 10 still has not 18 provided a legitimate basis for refusing to answer the remaining Requests directed to 19 its own 70+ DMCA Notices, nor has Perfect 10 agreed to narrow the issues by 20 dropping its claims regarding one or more of the DMCA Notices at issue in Google's 21 Requests for Admission. 22 11. The contents and sufficiency of all of Perfect 10's 70+ DMCA Notices 23 are currently being considered by Judge Matz in connection with Google's pending 24 Motions for Summary Judgment Regarding Google's Entitlement to Safe Harbor 25 under the DMCA (Docket Nos. 426-428). Perfect 10's responses to these 478 26 unanswered Requests likely will aid the Court in resolving Google's pending DMCA 27 28
SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

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1 motions. Accordingly, Google's Motion to Compel Responses to Google's 2 Requests for Admission remains ripe for adjudication by the Court. 3 I declare under penalty of perjury under the laws of the United States of 4 America that the foregoing is true and correct. Executed September 21, 2009 at 5 Redwood Shores, California. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SUPPLEMENTAL KASSABIAN DECLARATION IN SUPPORT OF GOOGLE'S MOTIONS TO COMPEL

__________________________ Rachel Herrick Kassabian

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