Perfect 10 Inc v. Google Inc et al

Filing 550

DECLARATION of MELANIE POBLETE IN OPPOSITION TO GOOGLE'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL PERFECT 10 TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION (DOCKET NO. 543); 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 This document is to be linked to Docket Number 543; filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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 26 27 28

Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 Email: [e-mail] 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) Consolidated with Case No. CV 05-4753 AHM (SHx) DISCOVERY MATTER

DECLARATION OF MELANIE GOOGLE, INC., a corporation; and POBLETE IN OPPOSITION TO GOOGLE'S SUPPLEMENTAL DOES 1 through 100, inclusive, MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL Defendant. ______________________________ PERFECT 10 TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION AND CONSOLIDATED CASE. (DOCKET NO. 543) Before Judge Stephen J. Hillman Date: None Set (taken under submission) Time: None Set 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 Melanie Poblete in Opposition to Google's Supplemental Memo Re Mtn to Compel P10 to Affix Document Control Numbers to Document Production

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 26 27 28

I, Melanie Poblete, declare as follows: 1. I am employed by Perfect 10, Inc. and the Law Offices of Jeffrey N. Mausner. I attended the University of California, Santa Cruz for a Bachelor of Arts degree in Legal Studies, which I am in the process of completing. For 6 years, I have worked in the legal field assisting attorneys in pre-trial litigation, discovery, and in arbitration hearings and trials. Unless otherwise stated, I have direct and personal knowledge of the facts set forth herein and, if called as a witness, could and would competently testify thereto. 2. I was present during the September 22, 2009 discovery hearing before Judge Hillman and was involved in the preparation thereof. I obtained copies of the recording of that proceeding from the Court Recorder's office and have listened to the relevant portions regarding Bates stamping several times. Additionally, I have carefully read the following pleadings filed by Google: (a) 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 ("Supplemental Kassabian Decl.") (Docket No. 540), (b) Google Inc.'s Supplemental Memorandum In Support Of Its Motion To Compel Perfect 10, Inc. To Affix Control Numbers To Its Document Production ("Google's Supplemental Memo") (Docket No. 543) and, (c) Second Supplemental Declaration of Rachel Herrick Kassabian In Support Of Google's Motion To Compel Perfect 10 To Affix Document Control Numbers To Its Document Production ("Second Supplemental Kassabian Decl.") (Docket No. 543-2). 3. On September 30, 2009, I followed the instructions that the Court gave to Google's attorneys on September 22, to test a sample for Bates -1-

Declaration of Melanie Poblete in Opposition to Google's Supplemental Memo Re Mtn to Compel P10 to Affix Document Control Numbers to Document Production

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 26 27 28

numbering. I took a file from Perfect 10's June 29, 2009 production, which included a hard drive. From that hard drive, I selected a folder containing the deposit material for the perfect10.com website, which was entitled "VA 1-407570 Perfect 10 Website" and contained approximately 3.44 GB of data. My computer was purchased within the last year and operates well. Using the instructions provided by Kassabian Supplemental Decl. and Google's Supplemental Memo, I began the Bates numbering process at 3:00 p.m. 4. At 3:55 p.m., 55 minutes later, a window appeared from Adobe, which indicated a "Fatal Error." Within moments, another window showing "Fatal Error" appeared. A print-screen of those errors is shown below.

Additionally, when I selected "OK," Adobe Acrobat was "(Not Responding)" as pictured below: -2-

Declaration of Melanie Poblete in Opposition to Google's Supplemental Memo Re Mtn to Compel P10 to Affix Document Control Numbers to Document Production

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 26 27 28 5. Adobe was unable to get beyond the stage of processing described in Page 3 of Google's Supplemental Memo. I examined the contents of the "VA 1-407-570 Perfect 10 Website" folder I selected for Adobe Acrobat to bates number. Over the multitude of folders and subfolders I opened to examine, no new PDF files were created from any of the files (html, image, or any other type) contained therein. I opened several files in several different subfolders and was unable to locate a single file that had been Bates numbered or converted to PDF. 6. The billing rate of a paralegal in California is about $125 per hour, according to a 2008 report by the National Association of Legal Assistants (NALA). A true and correct copy of relevant portions of the report, which I downloaded from the NALA website (http://www.nala.org/Survey_Table.htm) are attached hereto as Exhibit A.
Declaration of Melanie Poblete in Opposition to Google's Supplemental Memo Re Mtn to Compel P10 to Affix Document Control Numbers to Document Production

-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 26 27 28

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 this 1st day of October, 2009, in Los Angeles County, California. ___________________________ Melanie Poblete

Declaration of Melanie Poblete in Opposition to Google's Supplemental Memo Re Mtn to Compel P10 to Affix Document Control Numbers to Document Production

-4-

Exhibit A

2008 National Utilization and Compensation Survey Report

Section 3 Paralegal Billing Rates

March 2008

Copyright 2008 Reproduction of this report or portions thereof without express written permission is prohibited.

NALA ·

1516 S. Boston, #200

·

Tulsa, OK 74119 · 918- 587-6828 · www.nala.org

Section 3 Billing Rates Table 3.3 Current Billing Rates General Findings Years 2008-1997 Value Less than $30 $31 - $35 $36 - $40 $41 - $45 $46 - $50 $51 - $55 $56 - $60 $61 - $65 $66 - $70 $71 - $75 $76 - $80 $81 - $85 $86 - $90 Greater than $90 2008 Response s 18 4 4 6 19 5 30 33 26 111 42 41 58 448 2008 Percent 2% 1% 1% 1% 2% 1% 4% 4% 3% 13% 5% 5% 7% 53% 2004 Percent 2% 0 0 1% 4% 2% 4% 8% 4% 17% 6% 8% 6% 38% 2002 Percent 2% 1% 1% 3% 6% 3% 7% 9% 5% 15% 7% 7% 6% 29% 2000 Percent 7% 1% 2% 3% 9% 4% 9% 11% 5% 15% 6% 6% 4% 18% 1997 Percent 3% 2% 3% 7% 14% 6% 13% 12% 5% 13% 5% 5% 3% 7%

Page 2

Table 3.4 Billing Rate by Region 2008-1997 Data Region Region 1 Region 2 Region 3 Region 4 Region 5 Region 6 Region 7 2008 Rate $102 $101 $87 $102 $101 $84 $125 2004 Rate $93 $95 $77 $91 $89 $79 $106 2002 Rate $80 $85 $71 $82 $80 $71 $97 2000 Rate $73 $64 $61 $71 $66 $52 $83 1997 Rate $62 $68 $57 $66 $62 $61 $72

Copyright March 2008, NALA

2008 National Utilization and Compensation Survey Report