Perfect 10 Inc v. Google Inc et al

Filing 546

NOTICE OF LODGING filed by Plaintiff Perfect 10, Inc. of [Proposed] Order Granting In Part Google Inc.s Motion To Compel Perfect 10 To Produce Complete And Unredacted Financial Documents And Other Damages-Related Documents, And Amazon.Com and Alexa Internets Joinder Therein re MOTION to Compel Perfect 10, Inc. to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions #407 , Motion Hearing, #541 (Attachments: #1 Proposed Order Granting In Part Google Inc.'s Motion To Compel Perfect 10 To Produce Complete And Unredacted Financial Documents And Other Damages-Related Documents, And Amazon.Com and Alexa Internet's Joinder Therein)(Mausner, Jeffrey)

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[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHx) CONSOLIDATED WITH CV04-9484 AHM (SHx)

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION PERFECT 10, INC., a California corporation, Plaintiff, v. AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; ALEXA INTERNET, INC., a corporation, and DOES 2 through 10, inclusive, Defendants. PERFECT 10, INC., Plaintiff, v. GOOGLE, INC., a corporation, and DOES 1-100, inclusive Defendants. Case No. CV05-4753 AHM (SHx) CONSOLIDATED WITH CASE NO. CV04-9484 AHM (SHx) [PROPOSED] ORDER GRANTING IN PART GOOGLE INC.'S MOTION TO COMPEL PERFECT 10 TO PRODUCE COMPLETE AND UNREDACTED FINANCIAL DOCUMENTS AND OTHER DAMAGES-RELATED DOCUMENTS, AND AMAZON.COM AND ALEXA INTERNET'S JOINDER THEREIN Hon. Stephen J. Hillman Date: September 22, 2009 Time: 10:00 A.M. Courtroom: 550 Discovery Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set

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[PROPOSED] ORDER On September 22, 2009, the Court heard argument on various discovery matters raised in Defendant Google Inc.'s Motion to Compel Perfect 10 (1) To Produce Documents, (2) To Comply With The Protective Order, and (3) To Affix Document Control Numbers To Its Document Production, including disputes relating to financial documents and certain related issues arising from the planned deposition of Perfect 10's accountant Bruce Hersh.1 Defendants Amazon.com and Alexa.com filed an application to join in portions of that motion and to raise these related issues, and which the Court hereby GRANTS. Having considered the parties' respective briefs and oral argument, and good cause existing therefore, the Court HEREBY ORDERS that Google's Motion and the Amazon Defendants' joinder therein is GRANTED IN PART AND DENIED IN PART, as follows: 1. Perfect 10 is ordered to produce copies of all of its periodic and annual financial statements and tax returns to the extent such documents exist, including those in the possession of its outside accountant Bruce Hersh, in complete and unredacted form, with the following two exceptions: a. b. With respect to medical expenses, the names of patients and With respect to credit card expenses, Perfect 10's credit card treating physicians may be redacted; numbers may be redacted. Perfect 10 must produce such documents in complete and unredacted form (with the two exceptions noted above) by October 9, 2009. Google only asked the Court to rule on Issues I, VII, VIII, and IX at the September 22, 2009 hearing, so the Court did not reach Issues II ­ VI presented in the parties' Joint Stipulation On Google Inc.'s Motion to Compel Perfect 10 (1) To Produce Documents, (2) To Comply With The Protective Order, and (3) To Affix Document Control Numbers To Its Document Production. This Order rules on Issue I in the aforementioned Joint Stipulation (and the related issues implicated by the upcoming deposition of Mr. Hersh).
[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)
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2.

Settlement payments Perfect 10 has received from third parties are

relevant for discovery purposes. This Court is not ruling on whether this information is relevant for any other purpose. Perfect 10 may not redact information regarding the date, payor, and amount of any such settlement payments. This information will be treated as "HIGHLY CONFIDENTIAL" under the terms of the Protective Order. Perfect 10's compliance with the Order is stayed for ten (10) days from the hearing date, September 22, 2009. By producing such settlement payment information pursuant to this Order, neither Perfect 10 nor its counsel will be in violation of any protective orders or confidentiality provisions entered into in this action or in any other action, or with any of the settling third-parties. Perfect 10 is not required to produce any information about any settlements with third-parties, other than the date, payor, and amount of any such settlement payments. and may redact the settlement information it is not required to produce. 3. as follows: a. At least ten (10) calendar days prior to the agreed upon deposition date of its accountant Bruce Hersh, Perfect 10 shall produce to all Defendants copies of all source documents reasonably available to Mr. Hersh which he reasonably expects to refer to in order to prepare for his deposition, in order to give meaningful testimony concerning Perfect 10's financial condition. b. Mr. Hersh's deposition will proceed as follows: Defendants may depose Mr. Hersh up to one and one-half days (not to exceed 10.5 hours of testimony), after which the parties shall meet and confer regarding whether it is necessary for Mr. Hersh to produce any additional source documents that Mr. Hersh did not already produce, if any, and/or further questioning of Mr. Hersh. If the parties are unable to agree regarding the scope of or need for any further production and/or the necessity
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Defendants' request for all source documents Mr. Hersh relied on to

prepare the financial statements and allocate expenses and income is granted in part,

[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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of obtaining further testimony from Mr. Hersh, the Court shall conduct a further hearing to decide that dispute. 4. With respect to the specific Google Document Requests identified in Google's motion to compel, Perfect 10 is ordered to produce responsive documents, to the extent that they have not already been produced by Perfect 10 or Google, and to the extent that they exist and can be located with a reasonable search, as follows: a. b. Google's Document Request No. 81: The Court defers ruling on this Google's Document Request No. 87: Perfect 10 is ordered to produce Request, without prejudice to Google's renewal of its Motion prior to trial. any projections of sales, revenue, or profits for each of Perfect 10's contemplated or launched products or services that Perfect 10 can locate with a reasonable search. The Court defers ruling on the Request to the extent it requires Perfect 10 to produce "all" such documents. c. Google's Document Request No. 94: Perfect 10 is ordered to produce responsive documents to the same extent that the Court has ordered production of back up or source documents by Perfect 10 and/or Mr. Hersh (see Paragraph 3.a, supra). d. e. Google's Document Request No. 95: Perfect 10 is ordered to produce Google's Document Request No. 104: Perfect 10 is ordered to produce documents sufficient to show Perfect 10's 25 largest corporate or business customers. documents sufficient to show the fact alleged in paragraph 11 of the amended complaint in the Google case, i.e., that Perfect 10's Web site receives approximately 100,000 unique visitors per month (including documents sufficient to show how Perfect 10 determines that a visitor is unique), and further including log files to perfect10.com that may be located upon a reasonable search. f. Google's Document Request No. 105: Perfect 10 is ordered to produce documents sufficient to show the fact alleged in paragraph 14 of the amended complaint in the Google case, i.e., that Perfect 10 has spent millions of dollars
[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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advertising and promoting its marks and its products and services; and documents sufficient to show the amounts Perfect 10 earmarked or spent to advertise and promote marks and the amounts Perfect 10 earmarked or spent to advertise and promote products and services. g. Google's Document Request No. 108: Perfect 10 is ordered to produce documents sufficient to show the fact alleged in paragraph 17 of the amended complaint in the Google case, i.e., that the described infringement is "devastating to" and threatens the existence of Perfect 10's business, including documents sufficient to show any financial data demonstrating this effect. h. Google's Document Request No. 109: Perfect 10 is ordered to produce documents sufficient to show the fact alleged in paragraph 47 of its answer to Google's counterclaims, i.e., that the revenues Perfect 10 received resulting from searches on Google are substantially less than they should be. i. Google's Document Request No. 110: Perfect 10 is ordered to produce documents sufficient to show the fact alleged in paragraph 47 of its answer to Google's counterclaims, i.e., that the damages caused by activities alleged in the amended complaint far exceed any benefit to Perfect 10 from Google. j. Google's Document Request No. 111: Perfect 10 is ordered to produce documents sufficient to show the fact alleged in paragraph 11 of the declaration of Norman Zada in support of the motion for preliminary injunction ("Zada Declaration"), i.e., that Perfect 10 invested over $ 36 million to develop a respected brand and goodwill, including documents sufficient to show what expenditures are included in this figure (including expenditures other than the $12 million related to photographs described in that paragraph). k. Google's Document Request No. 112: Perfect 10 is ordered to produce documents sufficient to show all revenues received by Perfect 10 from movies, television, and videos, as described in paragraphs 12 to 14 of the Zada Declaration.
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[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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Google's Document Request No. 162: Perfect 10 is ordered to produce

documents sufficient to show any benefit to Perfect 10 resulting from any conduct or action by Google. m. Google's Document Request No. 165: Perfect 10 is ordered to produce documents sufficient to show the market share of Perfect 10 in any market in which it claims to compete, including but not limited to the markets for print magazines generally, for adult-oriented magazines, for websites generally, for adult-oriented websites, for licensing of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. n. Google's Document Request No. 166: Perfect 10 is ordered to produce documents sufficient to show the effect or impact, if any, of any conduct or action by Google on the market share of Perfect 10 in any of the markets in which it claims to compete, including but not limited to the market for print magazines generally, for adult-oriented magazines, for websites generally, for adult-oriented websites, for licensing of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. o. Google's Document Request No. 167: Perfect 10 is ordered to produce documents sufficient to show the effect or impact, if any, of Google's Web Search on the market share of Perfect 10 in any of the markets in which it claims to compete, including but not limited to the market for print magazines generally, for adultoriented magazines, for websites generally, for adult-oriented websites, for licensing of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. p. Google's Document Request No. 168: Perfect 10 is ordered to produce documents sufficient to show the effect or impact, if any, of Google's Image Search on the market share of Perfect 10 in any of the markets in which it claims to compete, including but not limited to the market for print magazines generally, for adultoriented magazines, for websites generally, for adult-oriented websites, for licensing
[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. q. Google's Document Request No. 169: Perfect 10 is ordered to produce documents sufficient to show the effect or impact, if any, of Google's AdWords program on the market share of Perfect 10 in any of the markets in which it claims to compete, including but not limited to the market for print magazines generally, for adult-oriented magazines, for websites generally, for adult-oriented websites, for licensing of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. r. Google's Document Request No. 170: Perfect 10 is ordered to produce documents sufficient to show the effect or impact, if any, of Google's AdSense program on the market share of Perfect 10 in any of the markets in which it claims to compete, including but not limited to the market for print magazines generally, for adult-oriented magazines, for websites generally, for adult-oriented websites, for licensing of downloads of images for cell phones generally, and for licensing of downloads of adult-oriented images for cell phones. s. Google's Document Request No. 171: Perfect 10 is ordered to produce documents sufficient to show, on a yearly basis, Perfect 10's strategic marketing and advertising plans for the actual or potential sale, delivery, distribution or licensing for sale, of any and all of Perfect 10's products or services. t. Google's Document Request No. 173: Perfect 10 is ordered to produce documents sufficient to show any contemplated or proposed transaction in which Perfect 10 would invest in, give money to, buy, make a loan to, fund, or take any financial ownership interest in any person. u. Google's Document Request No. 174: Perfect 10 is ordered to produce documents sufficient to show all transactions in which Perfect 10 did invest in, give money to, buy, make a loan to, fund, or take any financial ownership interest in any person.
[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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Google's Document Request No. 175: Perfect 10 is ordered to produce

documents sufficient to show any sale, delivery, distribution, licensing, or other transfer of ownership of Perfect 10's alleged copyrighted materials. w. Google's Document Request No. 176: Perfect 10 is ordered to produce documents sufficient to show any studies or analyses of Perfect 10's actual, estimated or projected profits and losses from the sale, delivery, distribution or licensing for sale, delivery or distribution of its alleged copyrighted materials. x. Google's Document Request No. 177: Perfect 10 is ordered to produce documents sufficient to show the value of Perfect 10's alleged copyrighted materials, including, without limitation, sufficient financial statements (detailed, consolidated or otherwise). y. Google's Document Request No. 179: Perfect 10 is ordered to produce documents sufficient to reflect revenue earned by Perfect 10 as a result of the use, display, transfer, license or sale (on the Internet or through any media) of Perfect 10's alleged copyrighted materials, to the same extent that the Court has ordered production of back up or source documents by Perfect 10 and/or Mr. Hersh (see Paragraph 3.a, supra). z. Google's Document Request No. 181: Perfect 10 is ordered to produce documents sufficient to show Perfect 10's efforts to promote or increase revenues generated by perfect10.com. aa. Google's Document Request No. 182: Perfect 10 is ordered to produce documents sufficient to show Perfect 10's efforts to increase paid memberships in perfect10.com. Perfect 10 is ordered to produce all of the above-described documents to all remaining Defendants in the Google and Amazon cases, to the extent that they have

[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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not already been produced, and to the extent that they exist and can be located with a reasonable search, by October 26, 2009. The foregoing is made without prejudice to any defendant seeking additional documents responsive to the document requests considered at the hearing or requested in deposition subpoenas served upon accountant Bruce Hersh. IT IS SO ORDERED. Date:
62229951 v1

Hon. Stephen J. Hillman United States Magistrate Judge

[PROPOSED] ORDER CASE NO. CV05-4753 AHM (SHX) CONSOLIDATED WITH CV04-9484 AHM (SHX)

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