Perfect 10 Inc v. Google Inc et al

Filing 556

TRANSCRIPT for proceedings held on 9/04/09 3:15pm. Court Reporter/Electronic Court Recorder: Babykin Courthouse Services, phone number [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder 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 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release of Transcript Restriction set for 1/4/2010. (Lopez, Margarita)

Perfect 10 Inc v. Google Inc et al

Doc. 556

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 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED SANDRA L. BUTLER DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA [phone] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PERFECT 10, INC.,

) ) PLAINTIFF, ) ) VS. ) ) ) GOOGLE, INC., ) ) ) DEFENDANT. ) ______________________________)

CASE NO. CV 04-9484-AHM(SHX) LOS ANGELES, CALIFORNIA SEPTEMBER 4, 2009 (3:15 P.M. TO 4:00 P.M.)

TELEPHONIC CONFERENCE BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

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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 ALSO PRESENT: APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER VALERIE KINCAID ATTORNEYS AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CALIFORNIA 91367 FOR THE DEFENDANT: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER ATTORNEY AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: RACHEL M. HERRICK KASSABIAN ATTORNEY AT LAW 555 TWIN DOLPHIN SUITE 560 REDWOOD SHORES, CALIFORNIA 04065 TOWNSEND TOWNSEND & CREW BY: TIMOTHY CAHN ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CALIFORNIA DR. NORMAN ZADA PRESIDENT, PERFECT 10

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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 INDE CASE NO. CV 04-9484-AHM(SHX) PROCEEDINGS: X SEPTEMBER 4, 2009

TELEPHONIC CONFERENCE

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 LOS ANGELES, CALIFORNIA; FRIDAY, SEPTEMBER 4, 2009 THE CLERK: TELEPHONIC CONFERENCE IN THE CHAMBERS

OF MAGISTRATE JUDGE STEPHEN J. HILLMAN REGARDING CASE NUMBER CV 04-9484-AHM(SH). VERSUS GOOGLE. COUNSEL, PLEASE ENTER YOUR APPEARANCE. THE COURT: JUDGE HILLMAN AT LAST. THE TITLE OF THE CASE IS PERFECT 10

HI, EVERYONE. OKAY. WHY DON'T EVERYONE MAKE THEIR APPEARANCES.

I AM RECORDING THIS. MR. MAUSNER: THIS IS JEFF MAUSNER FOR PERFECT 10.

ALSO ON THE LINE FOR PERFECT 10 ARE VALERIE KINCAID AND DR. ZADA. THE COURT: WE CAN BARELY HEAR YOU, BUT -OKAY.

MR. MAUSNER: THE COURT: HAVE TO SPEAK UP. MR. MAUSNER: THE COURT:

I KNOW WHO YOU ARE, BUT YOU'RE GOING TO

OKAY.

THIS IS JEFF MAUSNER --

OKAY.

GREAT, GREAT.

MR. MAUSNER: -- FOR PERFECT 10. IS THAT BETTER? THE COURT: MUCH BETTER. OKAY. ALSO ON THE LINE ARE VALERIE

MR. MAUSNER: KINCAID AND DR. ZADA. THE COURT:

THANK YOU.

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 MR. ZELLER: HAVE MIKE ZELLER. THE COURT: THANK YOU. AND RACHEL HERRICK KASSABIAN ON AND GOOD AFTERNOON. FOR GOOGLE YOU

MS. HERRICK:

BEHALF OF GOOGLE AS WELL. MR. CAHN: GOOD AFTERNOON, JUDGE HILLMAN. THIS IS

TIM CAHN FOR AMAZON.COM, ALEXA, AND A9.COM. THE COURT: OKAY. LET ME TAKE UP BRIEFLY AMAZON --

AMAZON'S REQUEST TO ADD ON THEIR MOTION FOR THE HEARING DATE OF THE 22ND. I JUST RECEIVED THAT REQUEST, THE EX PARTE REQUEST ABOUT 15 MINUTES AGO, AND I SEE THAT PERFECT 10 WILL OPPOSE IT. AND I WOULD SUGGEST THAT -- WELL, LET ME SAY WITHOUT EVEN CONSIDERING IT, THAT IT SEEMS TO ME THAT IT WOULD MAKE SENSE TO HAVE EVERYTHING HEARD AT THE SAME TIME AND ARGUED AT THE SAME TIME. BUT IF PERFECT 10 WANTS TO FILE

AN OPPOSITION TO THAT, I'LL GIVE THEM UNTIL NEXT -- HOW ABOUT WEDNESDAY, THE 9TH? MR. MAUSNER: DISCUSS IT NOW. ACTUALLY, YOUR HONOR, MAYBE WE CAN

YOU KNOW, IF WHAT THEY'RE PROPOSING IS THAT

THEY JUST, YOU KNOW, CAN SAY THAT THEY AGREE WITH GOOGLE'S MOTION AND HELP GOOGLE ARGUE IT, WE WOULDN'T OPPOSE THAT. BUT IF WHAT THEY'RE TRYING TO DO IS GET A MOTION REGARDING THEIR DISCOVERY ON CALENDAR BY THE 22ND, YOU KNOW,

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 WE HAVEN'T MET AND CONFERRED ABOUT IT. THE COURT: PENDING FOR -MR. MAUSNER: IT'S NOT ACTUALLY. NO, NO. THEY'RE TALKING ABOUT -WAIT, NO. IT'S THE MOTION THAT'S BEEN

THEY'RE -OKAY. WAIT A SECOND. MAYBE I

THE COURT: MR. CAHN:

CAN I INTERRUPT FOR A SECOND.

CAN CLARIFY SOMETHING. MR. MAUSNER: MR. CAHN: THE COURT: MR. CAHN: THE COURT: OKAY. GO AHEAD.

THERE ARE TWO REQUESTS, YOUR HONOR. YES. THERE IS A MOTION FILED BY A-9.COM -RIGHT.

MR. CAHN: -- THAT COVERS A LOT -- SOME OF THE SAME GROUNDS THE GOOGLE MOTION COVERS. THE COURT: MR. CAHN: THE COURT: MR. CAHN: TO HAVE HEARD. IN ADDITION, THERE ARE -- THERE ARE PENDING DISCOVERY DISPUTES THAT TRACK ISSUES THAT ARE ALREADY PENDING BEFORE THE COURT ON GOOGLE'S MOTION TO COMPEL AND A9'S MOTION TO COMPEL. FOR EXAMPLE, THERE'S AN ISSUE ABOUT WHETHER OR JUNE OF '08. YES, EXACTLY. OKAY. AND IT'S THAT MOTION THAT WE WOULD LIKE

NOT PERFECT 10 MUST UNREDACT CERTAIN FINANCIAL DOCUMENTS.

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 HONOR. THE COURT: YES. OKAY. TO THE EXTENT THAT THEY'RE THE COURT: MR. CAHN: THE COURT: OKAY. THAT ISSUE IS BEFORE YOUR HONOR -YES.

MR. CAHN: -- IN THE GOOGLE MOTION. THE COURT: MR. CAHN: YES. ALEXA AND AMAZON HAVE THE SAME DISCOVERY

DISPUTE WITH PERFECT 10, BUT WE HAVEN'T FILED A DUPLICATIVE MOTION ON THAT. THE COURT: MR. CAHN: OKAY. SO, YOUR HONOR, YOUR RULING ON GOOGLE'S

MOTION IS GOING TO IMPACT DISCOVERY DISPUTES BETWEEN THE OTHER DEFENDANTS. THE COURT: MR. CAHN: WELL, YOU WANT TO -SO, PART OF THE REQUEST WAS TO GIVE US

AN OPPORTUNITY TO PARTICIPATE AT THE HEARING TO THE EXTENT YOUR HONOR'S RULINGS WILL DECIDE OTHER PENDING DISCOVERY DISPUTES. THE COURT: UNDERSTAND. MR. MAUSNER: CAN I -- CAN I RESPOND TO THAT, YOUR ALL RIGHT. WELL, THEN -- ALL RIGHT. I

MR. MAUSNER:

SAYING WHATEVER GOOGLE REQUESTED, YOU KNOW, WE WOULD BE BOUND BY THAT. BOTH SIDES WOULD BASICALLY BE BOUND BY THAT.

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 THAT'S FINE. BUT IF THEY'RE TRYING TO BRING IN NEW THINGS THAT AREN'T THE SAME AS WHAT'S IN THE GOOGLE ONE, I DON'T THINK THAT THAT PROCEDURE WOULD BE WORKABLE. THE COURT: NO, AND IT'S NOT GOING TO BE ALLOWED.

SO, THE QUESTION IS WILL YOU AT LEAST CONSIDER NOT OPPOSING PUTTING ON THE 2008 MOTION ON THE SAME DAY AS THE GOOGLE MOTIONS. AND WILL YOU CONSIDER ALLOWING AMAZON TO

PARTICIPATE IN THE ARGUMENT OF THE GOOGLE MOTION -- THE THIRD GOOGLE -- WHAT I SAY IS THE THIRD GOOGLE MOTION AS WRITTEN? MR. MAUSNER: AS TO THE LATTER QUESTION, IF ALL

THEY'RE DOING IS BASICALLY SAYING, WE AGREE WITH GOOGLE, THAT, YOU KNOW, HERE'S ANOTHER ARGUMENT IN CONNECTION WITH GOOGLE'S REQUEST, WE WOULD NOT OPPOSE THAT. NOW, AS FAR AS THEIR A9 MOTION, A9 -- YOU KNOW, THERE WAS A SUMMARY JUDGMENT MOTION, WHICH A9 WON, AND KNOCKED THEM OUT OF THE CASE. AND AS YOU MIGHT RECALL, YOUR HONOR, THEY TOOK THE POSITION THAT WE COULD NOT TAKE DISCOVERY FROM A9. NOW THEY

WANT A9'S DISCOVERY MOTION DECIDED EVEN THOUGH IT WAS THEIR POSITION BEFORE THAT A9 WAS NOT IN THE CASE. NOW, SO THAT -- YOU KNOW, WE DON'T THINK THAT'S PROPER, AND WE WOULD OPPOSE THAT. THE COURT: GRANTED A9'S MOTION. OKAY. SO, REMIND ME. JUDGE MATZ

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 THINGS. THE COURT: OKAY. MR. MAUSNER: THE COURT: RIGHT.

AND THEN THERE WAS THE SEPARATE

SKIRMISH OVER THE DEPOSITION OF THE GUY IN SEATTLE. MR. MAUSNER: THE COURT: RIGHT. MR. LEBLANG.

OKAY.

WHICH YOU'VE REPRESENTED WAS SO, I

RELEVANT TO THE OTHER REMAINING AMAZON DEFENDANTS. ALLOWED THAT. MR. MAUSNER: RIGHT.

IT'S RELEVANT REALLY TO BOTH

SO, NOW LET ME HEAR FROM AMAZON AS TO WHY THIS IS AN A9 MOTION, WHY IT SHOULD GO FORWARD. MR. CAHN: RIGHT. BECAUSE THE -- IT'S SORT OF A THE ISSUES THAT ARE

MIRROR OF WHAT MR. MAUSNER JUST SAID.

FRONT AND CENTER BEFORE YOUR HONOR IN THE A9 MOTION ARE STILL RELEVANT TO THE REMAINING AMAZON DEFENDANTS. ALL OF THE DISCOVERY REQUESTS ARE THE SAME. DISPUTES ARE THE SAME. A9.COM'S NAME ONLY. DISCOVERY. SO, THE ISSUES ARE STILL ALIVE AND RELEVANT FOR THE REMAINING DEFENDANTS. MR. MAUSNER: THAT THAT'S TRUE. WELL, FIRST OF ALL, I DON'T THINK THAT THE MOTION WAS BROUGHT IN THE

YOU KNOW, THIS IS CONSOLIDATED

OTHER THAN THE STUFF THAT'S GOING TO BE

DECIDED IN THE GOOGLE MOTION, I'M NOT SURE WHAT THERE IS

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 THAT'S ADDITIONAL TO THAT THAT WAS IN THE A9 MOTION. THE COURT: ALL RIGHT. ALL RIGHT. LISTEN, I DON'T YOU

WANT TO TAKE EVERYONE'S TIME TO HAVE THIS SIDE DEBATE.

TWO CAN HAVE A CONFERENCE AFTER THIS, AFTER I GET OFF THE PHONE, AND EITHER AGREE THAT THE A9 MOTION, NO MATTER HOW IT IS NAMED, IS APPLICABLE AND SHOULD BE HEARD, OR I'LL GIVE PERFECT 10 UNTIL THE 9TH TO FILE ITS OPPOSITION. I'LL DECIDE. MR. MAUSNER: MR. CAHN: THE COURT: OKAY. AND THEN

SOUNDS GOOD. NOW, LET'S -ACTUALLY, YOUR HONOR, CAN WE HAVE

MR. MAUSNER: UNTIL THE 10TH?

THERE'S SOME OTHER THINGS THAT ARE COMING UP

INCLUDING A DEPOSITION ON THE 9TH. THE COURT: ALL RIGHT. NOW, LET ME GIVE THE

BIRD'S-EYE VIEW ON AT LEAST THE GOOGLE MOTIONS -- NOT RULINGS, BUT. I WANT TO SAY THAT I WANT THE HEARING TO BE

HELPFUL AND NOT STRIDENT AND WELL WITHIN THE PARAMETERS THAT JUDGE MATZ HAS SAID IN TERMS OF GOING FORWARD IN THIS CASE. AND ALTHOUGH HE HAS NOT FORMALLY INDICATED THAT THE APPROACH IN MICROSOFT SHOULD BE REPLICATED, THAT IS CLEARLY MY UNDERSTANDING. FROM MY DISCUSSIONS WITH JUDGE MATZ IS THAT HE BELIEVES THAT THE SAMPLING APPROACH THAT HE CREATED AND ENFORCED IN THE MICROSOFT CASE -- AND I'M NOT ASSUMING THAT

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 GOOGLE IS AT ALL AWARE OF THE DETAILS OF THAT. I'M NOT

EXPECTING THEM TO BE UP ON THAT -- BUT THAT THE PROTOCOL THAT WAS FOLLOWED IN MICROSOFT CLEARLY IN JUDGE MATZ'S MIND AND IN MY MIND WAS A CONTRIBUTING FACTOR TO SETTLEMENT IN THAT CASE. SO, I DO NOT WANT TO HAVE ORAL ARGUMENT THAT FOLLOWS THE POSITION THAT GOOGLE HAS PUT FORTH IN ALL OF THESE THREE MOTIONS. ANYTHING I DO, OBVIOUSLY -- ANYTHING I STRONG-ARM GOOGLE INTO DOING AT THIS HEARING WILL BE SUBJECT TO RECONSIDERATION BY JUDGE MATZ IF GOOGLE WANTS ME TO OR IF PERFECT 10 WANTS ME TO. BUT I WANT EVERYONE TO KNOW THAT I AM ENTERING AND AM PREPARING FOR THESE HEARINGS WITH THE GOAL OF MOVING THE CASE FORWARD TOWARDS READYING THEM FOR SUMMARY JUDGMENT AND SETTLEMENT ALONG THE LINES OF WHAT WAS USED, I THINK SUCCESSFULLY, IN MICROSOFT AND IN USING A SAMPLING PROCEDURE. AND THAT MIGHT MEAN THAT ALL OF THESE MOTIONS NEED TO BE PUT OFF ANOTHER FEW WEEKS TO GIVE EVERYONE TIME TO REALLY AGREE ON A PROTOCOL OR, AT LEAST, NARROW THEIR DIFFERENCES AS TO THE SAMPLING METHODS TO BE USED, THE AMOUNT OF DOCUMENTS, WHAT IS A PROPER SAMPLE, WHAT GOES INTO THE SPREADSHEET, WHICH WORKS ARE WE TALKING ABOUT. AND THERE ARE

A LOT MORE WORKS AND ALLEGED INFRINGEMENTS HERE THAN IN MICROSOFT. SO, I'M WILLING TO CONTINUE ALL OF THESE HEARINGS A

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 MOTIONS. GOING. REASONABLE PERIOD OF TIME IF THAT MEANS -- YOU KNOW, WE CAN -- EITHER YOU COULD AGREE ON A SAMPLING APPROACH OR AGREE TO DISAGREE IN NARROW AREAS. AND LET ME ALSO SAY THAT I DON'T KNOW IF PEOPLE WERE PLANNING ON FILING SUPPLEMENTAL MEMORANDA -- WHICH I SUPPOSE WOULD BE DUE NEXT MONDAY, THE 8TH, WHICH IS WHY I WANTED TO HAVE THIS CONFERENCE CALL TODAY. BECAUSE I DON'T

WANT SUPPLEMENTAL MEMORANDA FILED ON TUESDAY THAT DO NOT CONSIDER WHAT I'VE JUST SAID. I DON'T WANT JUST MORE

BRIEFING ON THE SAME MOTION -- THE SAME VERSION OF THE MOTIONS THAT I HAVE. IF I WANT -- IF I'M GOING TO GET SUPPLEMENTAL BRIEFING, I WANT IT TARGETED TO THE SAMPLING APPROACH. AND

I'D BE WILLING TO WAIT UNTIL, LET'S SAY, THE 15TH TO GET SUPPLEMENTAL BRIEFING. SO, THAT'S MY THOUGHT GENERALLY AS TO THESE THREE I WILL CARVE OUT ONE EXCEPTION IN THE DIRECTION I'M

AND THAT IS ON THE RFAS BECAUSE I DO THINK THAT A LOT I THINK A LOT OF THEM HAVE

OF THESE RFAS SHOULD BE ANSWERED. BEEN ANSWERED.

BUT I THINK A LOT MORE SHOULD BE ANSWERED.

RFAS I BELIEVE CAN CALL FOR LEGAL CONCLUSIONS. THERE'S CASE LAW SUPPORTING THAT. I THINK SOME OF THEM ON

THE OTHER HAND ARE SORT OF MEGA RFAS, AND I WOULDN'T BE EXPECTING TO GRANT THOSE. BURDENSOME. SOME OF THEM MAY BE TOO SOME OF THEM MAY

SOME OF THEM MAY BE AMBIGUOUS.

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 BE ARGUMENTATIVE. AND I HAVEN'T GONE THROUGH THEM ALL, BUT I DO EXPECT THAT I WOULD BE ORDERING -- GRANTING A LOT OF THE RFAS. BUT ALSO KEEPING AN EYE ON THE OVERALL GOAL, WHAT I

SAID EARLIER, IN NOT MAKING PERFECT 10 DO BUSY WORK THAT ISN'T TARGETED TOWARDS PARTIAL OR FULL SUMMARY JUDGMENT MOTIONS AND SETTLEMENT. SO, THAT'S PROBABLY ALL I REALLY WANT TO SAY TODAY. I HAVE SPENT A NUMBER OF HOURS THIS WEEK JUST REFRESHING MYSELF -- THAT'S A MISNOMER IN THESE CASES -- BUT EXHAUSTING MYSELF. AND I'LL CONTINUE TO DO SO, BUT IF PEOPLE WANT TO BUT IF YOU WANT

RESPOND BRIEFLY -- I DON'T WANT ARGUMENT.

CLARIFICATION, TO THE EXTENT THAT I CAN GIVE CLARIFICATION, I WILL. IF YOU WANT TO DISCUSS THIS NOT IN MY PRESENCE FOR A FEW MINUTES, I CAN GO OFF LINE, AND YOU CAN MAYBE DECIDE THAT JOINTLY YOU'D ALL LIKE TO PUT THESE OVER TILL OCTOBER SO THAT YOU CAN IN GOOD FAITH -- UNDERLINE "IN GOOD FAITH" -YOU KNOW, PROPOSE A PROCEDURE ALONG THE LINES FOLLOWED IN MICROSOFT AND MAYBE LEAVE A FEW BELLS AND WHISTLES FOR ME TO DECIDE, THAT'S FINE WITH ME. THIS CASE IS REALLY NOT ON MY FRONT BURNER, BUT I DO FEEL AN OBLIGATION TO PROCEED BECAUSE THE STAY HAS BEEN LIFTED. DR. ZADA: YOUR HONOR, COULD I ASK A QUESTION?

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 THE COURT: DR. ZADA: THE COURT: DR. ZADA: WHO'S THIS? IT'S NORM ZADA. HI. WOULD YOU LIKE TO SEE BASICALLY AS A

SUPPLEMENTAL BRIEF A SUGGESTION FOR SAMPLING? THE COURT: WELL, WHAT I WOULD LOVE TO SEE IS A

JOINT SUPPLEMENTAL BRIEF SAYING, YOU KNOW, THE PARTIES HAVE AGREED WITHOUT PREJUDICE TO APPEAL -- OR RECONSIDERATION BY JUDGE MATZ, THE PARTIES HAVE AGREED TO, YES, A, B, AND C IN TERMS OF SAMPLING. BUT WE HAVE LEGITIMATE DIFFERENCES IN

CERTAIN AREAS, AND WE'D LIKE TO NARROW THESE DISPUTES TO THAT. THAT WOULD BE EXTREMELY HELPFUL. AND, LIKEWISE, AN

AGREEMENT AS TO THE RFAS. I DON'T MEAN -- WELL, LET ME HEAR JUST -- LET ME HEAR GOOGLE'S SORT OF CANDID RESPONSE. MR. MAUSNER: THIS IS JEFF MAUSNER. ARE YOU AWARE OF THE COURT'S ORDER IN WHICH THE COURT STATES THAT IT EXPECTS TO RULE ON THE PENDING SUMMARY JUDGMENT MOTIONS BY LATE SUMMER? THE COURT: THAT'S IN AMAZON. CORRECT. YOUR HONOR, MAY I SAY SOMETHING.

MR. MAUSNER: THE COURT:

YES. CORRECT.

MR. MAUSNER: THE COURT:

YES, THERE'S NOTHING -- THERE'S NO

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 PENDING MOTIONS IN GOOGLE. MR. MAUSNER: YES, THERE ARE. THERE ARE ACTUALLY

FOUR PENDING SUMMARY JUDGMENT MOTIONS IN GOOGLE, WHICH I EXPECT THE COURT WOULD RULE ON AFTER THE AMAZON MOTION. THE COURT: I DIDN'T EVEN KNOW THAT. YES.

MR. MAUSNER: THE COURT:

AND ARE THEY DMCA MOTIONS OR WHAT? THREE OF THEM ARE DMCA MOTIONS, AND

MR. MAUSNER:

ONE OF THEM IS COMBINED CONTRIBUTORY INFRINGEMENT AND DMCA. DR. ZADA: WELL, WHAT HE IS POINTING OUT, YOUR

HONOR, IS THAT WE ACTUALLY FILED A MOTION FOR SUMMARY JUDGMENT AGAINST GOOGLE, AND WE USED 12 SAMPLE IMAGES IN THAT MOTION. THE COURT: DR. ZADA: UH-HUH. AND WITH 12 SAMPLE IMAGES WE FELT WE

COVERED ALL THE BASES. THE COURT: UH-HUH. OKAY. I DID NOT KNOW THIS. AND IT'S, YOU

AND I WISH I HAD KNOWN THIS A FEW DAYS AGO.

KNOW, MY FAULT FOR NOT KEEPING UP WITH THE DOCKET. DR. ZADA: SO, OUR POINT, YOUR HONOR, IS THAT WE

BELIEVED THAT WHEN WE DID OUR MOTION FOR SUMMARY JUDGMENT AGAINST GOOGLE, IT'S PRETTY MUCH ALL THAT NEEDED TO BE DONE. AND FORGIVE ME FOR ADDING SOMETHING HERE. I HAVE

DONE A CALCULATION AS TO THE NUMBER OF PAGES IT WOULD TAKE TO ANSWER GOOGLE'S INTERROGATORIES 3 AND 11, AND THE ANSWER WAS

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 SEEING. 30 MILLION PAGES. OUT. MY POINT OUT IS THAT THEY'RE VERY FAR OFF IN MY MIND AS TO WHAT IS DOABLE. AND I'M VERY MUCH IN FAVOR OF THE THAT'S HOW MANY IT WOULD TAKE TO PRINT

SAMPLING ISSUE, BUT THEIR MOTION IS NOT REALLY A SAMPLING MOTION. THEY'RE JUST -THE COURT: WELL, LET ME ASK -AND, YOUR HONOR, THE THREE OTHER

MR. MAUSNER:

MOTIONS WERE FILED BY GOOGLE, AND THEY WERE ABLE TO FILE THOSE MOTIONS WITHOUT ANY OF THE RELIEF THAT THEY'RE SEEKING IN THESE MOTIONS -- IN THE DISCOVERY MOTIONS. THE COURT: YES, RIGHT. DR. ZADA: THEY HAD NO SAMPLING ISSUES. THIS WAS SAY THAT AGAIN -- OH, I SEE WHAT YOU'RE

THEIR MOTION, YOUR HONOR. THE COURT: SO, THEN THE QUESTION IS, DOES EVERYONE

WANT ME TO JUST SHOVE THESE ASIDE UNTIL ALL THOSE MOTIONS ARE RULED ON BY JUDGE MATZ. DR. ZADA: YOUR HONOR. WE THINK THAT WOULD MAKE A LOT OF SENSE,

BECAUSE UNTIL SUCH TIME AS WE KNOW WHAT THE

DEFENDANTS WILL BE HELD LIABLE FOR, IF ANYTHING, YOU KNOW, FOR US TO HAVE TO GO THROUGH AND DO A MASSIVE AMOUNT OF WORK ON THINGS THAT WE MAY NOT BE AWARDED DAMAGES ON SEEMS PREMATURE. THE COURT: WHEN DID HE TAKE THESE UNDER

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 BRIEFED? SUBMISSION? MR. MAUSNER: THE COURT: THE AMAZON ONES WERE --

ABOUT A MONTH AGO. OURS WAS FILED LAST YEAR. AND THEN

MR. MAUSNER: THEIRS WAS FILED -DR. ZADA:

DECEMBER, I THINK. YES. THEIRS I THINK WAS FILED --

MR. MAUSNER: MR. CAHN:

NOVEMBER. OH, OKAY. AND THEN WHEN WAS IT FULLY

MR. MAUSNER: ABOUT -DR. ZADA: MR. CAHN: TIM CAHN FOR AMAZON.

JUNE?

I THOUGHT IT WAS BEFORE THAT.

THAT'S ONE ISSUE, YOUR HONOR -- THIS IS WE'RE ALL AWAITING JUDGE MATZ'S RULING

ON THE PENDING SUMMARY JUDGMENT MOTION BETWEEN ALEXA AND PERFECT 10. BUT IN ADDITION TO THAT JUDGE MATZ HAS ISSUED A DEADLINE OF OCTOBER 5 FOR ANY AMAZON SUMMARY JUDGMENT MOTIONS. SO, THAT'S THE ONE SORT OF HITCH I COULD SEE

IN JUST PUTTING EVERYTHING OFF BECAUSE THERE'S GOING TO BE -THERE ARE ISSUES, DISCOVERY ISSUES THAT WE'RE HOPING WOULD GET DECIDED THIS MONTH TO CLEAR THE WAY FOR US TO MOVE ON ALL THE GROUNDS THAT WE INTENDED TO MOVE BY. THE COURT: THAT DATE BACK. MR. CAHN: YEAH, THAT WOULD BE A RESOLUTION THAT WE MAYBE HE'D BE WILLING TO -- TO PUSH

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 WOULD SUPPORT. THE COURT: YOU'LL HAVE TO -- YOU'LL HAVE TO

APPROACH HIM WITH THAT. MR. CAHN: THE COURT: YES. BUT LET ME HEAR FROM GOOGLE. I MISSED

-- SOME OF IT I MISSED. UNDER SUBMISSION? MR. ZELLER: YOUR HONOR.

WHEN DID THE GOOGLE MOTIONS GO

YES.

IT'S MIKE ZELLER FOR GOOGLE,

THEY ARE NOT UNDER SUBMISSION YET TECHNICALLY. REPLY BRIEFS ON THE PENDING MOTIONS ARE DUE ON TUESDAY. THE COURT: SUBMISSION OR -MR. MAUSNER: HE ACTUALLY -- HE HAS ISSUED AN ORDER AND WHEN IS -- IS HE TAKING THEM UNDER

TAKING THEM UNDER SUBMISSION. THE COURT: HE DOESN'T WANT TO SEE YOU? AND REPLY BRIEFS ARE DUE ON TUESDAY. OKAY.

MR. MAUSNER: THE COURT:

AHH.

MR. MAUSNER:

BUT HE DID ACTUALLY ISSUE AN ORDER

TAKING THEM UNDER SUBMISSION. THE COURT: MR. ZELLER: OKAY. AND THE BRIEFING IS NOT YET COMPLETED.

AND I'D APPRECIATE IT IF I CAN AT LEAST FINISH MY SENTENCES WITHOUT BEING INTERRUPTED BY MR. MAUSNER. TO US ONE MAJOR ISSUE ON ALL THIS -- AND THIS IS

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 TRUE WITH RESPECT TO THE SAMPLING AS WELL AS THE PENDING SUMMARY JUDGMENT MOTIONS, WHICH ARE ONLY UNDER THE DMCA -- IS THAT WE HAVE BEEN SEEKING FINANCIAL INFORMATION. THAT

INFORMATION IS PERTINENT, AND WILL CONTINUE TO BE PERTINENT, REGARDLESS OF THE RESOLUTION OF THE DMCA MOTIONS. AND MORE IMPORTANTLY, WE HAVE BEEN TAKING DEPOSITIONS. I ALSO KNOW THAT THERE HAVE BEEN EFFORTS TO

HAVE MR. ZADA'S DEPOSITION SCHEDULED. THAT INFORMATION -- BECAUSE THERE ARE CLAIMS AGAINST GOOGLE THAT HAVE BEEN BEYOND COPYRIGHT. LANHAM ACT CLAIMS. THERE ARE STATE LAW CLAIMS. THERE ARE AND THESE

ARE JUST SIMPLY NOT EVEN ON THE TABLE WITH RESPECT TO THE DMCA MOTION. SO, ONE ISSUE I WANTED TO ASK YOU ABOUT, JUDGE, IN TERMS OF THE SAMPLING PROCEDURES, IN TERMS OF THE CLARIFICATION -THE COURT: YES.

MR. ZELLER: -- IS WOULD IT BE YOUR EXPECTATION THAT THE SAMPLING REGIME, WE WILL CALL IT -- WHICH I'M SURE YOU'RE ALSO AWARE GOOGLE HAS NOT CONSENTED TO -THE COURT: WELL, I --

MR. ZELLER: -- IF THAT IS WHAT IS IMPOSED, WOULD THAT TAKE THEN FINANCIALS COMPLETELY OFF THE TABLE AND NO DISCOVERY WOULD BE HAD ON THOSE? THE COURT: NO. NO, BUT MAYBE -- I THINK -- I'M

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 PRODUCED. REDACTED. OTHER -THE COURT: ALL RIGHT. LET'S -NOT SURE HOW MUCH DAMAGES DISCOVERY IN FINANCIALS IS GOING TO DRIVE THE CASE TOWARD SETTLEMENT. DR. ZADA: BUT --

YOUR HONOR, WE HAVE ALREADY PRODUCED TAX WE

RETURNS AND EVERY IMAGINABLE FINANCIAL DOCUMENT WE HAVE. HAVE REDACTED SMALL AMOUNTS OF THEM THAT ARE RELATED TO CONFIDENTIAL SETTLEMENTS. WE HAVE PRODUCED EVERYTHING WE

POSSIBLY COULD IN THE WAY OF FINANCIALS. MR. MAUSNER: THE FINANCIALS HAVE ALL BEEN

I GUESS THEIR ISSUE IS THAT PARTS OF THEM WERE THEY HAVE STUFF ABOUT CONFIDENTIAL SETTLEMENTS AND

MR. MAUSNER: -- MEDICAL BILLS AND STUFF LIKE THAT, PRIVATE STUFF. THE COURT: LET'S FOR THE MOMENT TAKE THAT MOTION

AND PUT IT IN A SEPARATE PILE FROM THE OTHER TWO MOTIONS, THE RFAS AND THE INTERROGATORIES. IT WOULD SEEM TO ME THAT WE NEED TO KNOW WHETHER JUDGE -- WELL, WHETHER BOTH SIDES ARE GOING TO APPROACH JUDGE MATZ AND REQUEST A MOTION CUTOFF DATE EXTENSION FOR AMAZON -YOU KNOW, 60 DAYS, SOMETHING LIKE THAT, BEGINNING OF THE YEAR, SOMETHING LIKE THAT. AND I WOULD GUESS THAT IF BOTH SIDES EXPLAIN TO HIM THAT THE REASON WOULD BE THAT THERE WILL BE THESE PENDING MOTIONS THAT MAY OBVIATE THE NEED FOR THESE MOTIONS, HE MIGHT

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 SETTING. THE COURT: OH, THERE'S NO DEADLINE. NO DEADLINE. OKAY. BE AGREEABLE. AND THEN WE COULD SEPARATELY PROCEED WITH THE MOTION REGARDING THE FINANCIALS AND OTHER DOCUMENTS. AND AS TO GOOGLE -- WELL, YOU KNOW, IT'S I GUESS THE SAME THING. MR. MAUSNER: BUT GOOGLE THERE IS NO DEADLINE

MR. MAUSNER: THE COURT:

ALL RIGHT. AND, YOUR HONOR, JUST SO YOU CAN FIND IT WAS ORDERED BY

MR. MAUSNER:

IT EASILY THE ORDER IS DOCKET NUMBER 500. JUDGE MATZ, FILED ON AUGUST 13, 2009.

SAID, "ON THE COURT'S

OWN MOTION THE COURT HEREBY TAKES OFF CALENDAR AND UNDER SUBMISSION DEFENDANT GOOGLE'S MOTION FOR SUMMARY JUDGMENT." AND THEN THERE'S THREE -- THE THREE GOOGLE MOTIONS ARE LISTED THERE. THE COURT: DON'T KNOW. ALL RIGHT. WELL, I MEAN, I REALLY -- I

MAYBE WE SHOULDN'T -- MAYBE I SHOULDN'T BE

CAUSING ALL THIS WORK AT THIS TIME. DR. ZADA: INTERJECTING AGAIN. YOUR HONOR, IF YOU DON'T MIND MY I THINK THERE'S -- WE CERTAINLY BELIEVE

THAT IT WOULD SAVE EVERYONE A LOT OF WORK IF THE BIG MOTIONS ON THE INTERROGATORIES ARE PUT OFF UNTIL JUDGE MATZ RULES ON AMAZON'S SUMMARY JUDGMENT -- EXCUSE ME, YOUR HONOR, OUR

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 TWOFOLD. SUMMARY JUDGMENT MOTION AGAINST AMAZON. BECAUSE THAT WILL

DETERMINE TO A LARGE EXTENT THE LIABILITY ALSO IN THE GOOGLE CASE. AND DEPENDING ON WHAT THAT RULING IS, I THINK AT THAT POINT IT WOULD BE MUCH CLEARER WHAT EXACTLY WE NEED TO PROVIDE TO THEM IN THE WAY OF PROOF OF IMAGES, DAMAGES, AND COPYRIGHT OWNERSHIP. THE COURT: ABOUT THIS? MR. ZELLER: WELL, CERTAINLY, FOR THE RECORD -- I ALL RIGHT. WHAT DID MR. ZELLER THINK

MEAN, IN TERMS OF THE CHARACTERIZATIONS THAT HAVE BEEN MADE ABOUT THE FINANCIALS THAT HAVE BEEN PRODUCED, OUR MOTIONS AND THE LIKE, WE DISAGREE WITH THAT. LITTLE OFF POINT RIGHT HERE. WHAT I WOULD SUGGEST, YOUR HONOR, IS SORT OF NUMBER ONE -- I MEAN, CERTAINLY WE APPRECIATE YOUR AND CLEARLY BUT THAT SEEMS TO BE A

GUIDANCE IN TERMS OF THE SAMPLING OF PROCEDURE.

IF THAT'S GOING TO BE THE CONSTRUCT THAT IS APPLIED, THAT WOULD CERTAINLY SUGGEST THAT A DIFFERENT APPROACH NEEDS TO BE TAKEN WITH RESPECT TO SOME OF THE DISCOVERY THAT IS AT ISSUE. I THINK IN FAIRNESS WHAT THAT WOULD REALLY MEAN IS THAT WE SHOULD CONSULT WITH AMAZON AND RECONVENE AS TO OUR SUGGESTED APPROACH ON THAT. AND CERTAINLY PART OF THAT IS GOING TO BE DRIVEN BY THE DEADLINE AND WHETHER THAT GETS MOVED AND, YOU KNOW, WHAT

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 IMPACT THAT HAS. SO, THAT SEEMS TO BE SOMETHING THAT CAN SORT OF BE TABLED FOR THE MOMENT. PROPOSAL. AND HOPEFULLY WE CAN COME UP WITH A

IF IT'S NOT A RESOLUTION ACROSS THE BOARD THAT

EVERYONE AGREES TO, AT LEAST WE CAN SORT OF SHARPEN UP OUR PROPOSALS ABOUT HOW THAT OUGHT TO BE DONE. THEN, WITH RESPECT TO THE OTHER BUCKETS OF DISCOVERY; NAMELY, THE RFAS AS WELL AS THE FINANCIALS, I MEAN, WE THINK THAT THAT IS APPROPRIATE FOR DISPOSITION. AND THE REASON IS IS THAT WE ARE ATTEMPTING TO TAKE DISCOVERY. THE DMCA MOTIONS CERTAINLY NO ONE IS GOING TO

ARGUE WOULDN'T HAVE AN IMPACT ON THE INFRINGEMENT REQUESTS. BUT THERE ARE MANY OTHER ISSUES IN THIS CASE THAT PERFECT 10 HAS GIVEN EVERY INDICATION THEY'RE NEVER GOING TO BE TAKEN OFF THE TABLE. SO, WE ARE CONSISTENT WITH JUDGE MATZ'S LIFTING OF DISCOVERY STAY ATTEMPTING TO TAKE DISCOVERY ON THOSE SUBJECTS. BECAUSE THOSE CLAIMS, REGARDLESS OF THE

DISPOSITION OF THE DMCA MOTIONS, HAVE BEEN -- NO INDICATION THAT THEY'RE GOING TO GO AWAY. AND CERTAINLY WE, GOOGLE, DO NOT WANT TO BE PUT AT FAULT, YOU KNOW, ONCE THE DMCA MOTIONS ARE DISPOSED OF, FOR GOOD OR BAD FROM OUR PERSPECTIVE, BE PUT AT FAULT FOR NOT HAVING PURSUED DISCOVERY ON THESE OTHER CLAIMS. I MEAN, I KNOW THAT JUDGE MATZ HAS IN OTHER

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 INSTANCES IN THESE -- WE'LL CALL THEM ROUGHLY CONSOLIDATED, OR EVEN IF THEY'RE NOT TECHNICALLY CONSOLIDATED -- THESE SIMILAR CASES HAS PUT EXTREMELY SHORT DEADLINES ON DISCOVERY AND THEN TO TRIAL ONCE THOSE MOTIONS HAVE BEEN RULED UPON. SO, WE ARE WE THINK ACTING ENTIRELY APPROPRIATELY IN PURSUING THE DISCOVERY ON THOSE SIMILAR -- ON THOSE OTHER CLAIMS THAT JUST UNDER NO CIRCUMSTANCES ARE GOING TO BE MOOTED. THE COURT: WELL -- OKAY. WHAT I COULD DO -- AND

NOW I'LL GET TO AMAZON IN A SECOND -- WHAT I COULD CONSIDER DOING IS TABLING THE RFAS -- I MEAN, THE INTERROGATORY MOTION AND THEN PROCEEDING WITH RFAS AND THE FINANCIAL, ET CETERA MOTIONS. BUT THEN THAT LEAVES AMAZON TWISTING IN THE WIND. (LAUGHTER.) MR. ZELLER: THAT'S WHAT I WAS HOPING NOT TO. AND

I DIDN'T WANT TO LEAVE THE IMPRESSION THAT -- AND THAT'S WHY I DO THINK IT MIGHT MAKE SOME SENSE TO CONSULT ON THAT. THE COURT: MR. ZELLER: YES. SO --

AND CERTAINLY IF THE DEADLINE IS

MOVED, AND I CERTAINLY DON'T MEAN TO SPEAK FOR AMAZON ON THIS, BUT IT WOULD AT LEAST SEEM TO DEAL WITH THE MOST IMMEDIATE -THE COURT: OKAY. HERE'S WHAT I SUGGEST. AND

MAYBE WE SHOULD HAVE ANOTHER CONFERENCE CALL EARLY NEXT WEEK. THIS IS WHAT MAKES SENSE TO ME IS THAT IF PERFECT 10 AND

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 AMAZON -- IF PERFECT 10 AND AMAZON CAN AGREE TO PROPOSE -JOINTLY PROPOSE A STIPULATION TO JUDGE MATZ TO EXTEND THEIR DISPOSITIVE MOTION CUTOFF DATE, YOU KNOW, 60 TO 90 DAYS, SOMETHING LIKE THAT, AND GET THAT BEFORE HIM QUICKLY, AND WE'LL SEE WHAT HE DOES WITH THAT, AND EXPLAIN THAT THE REASON -- EXPLAIN THE REASONS FOR THAT PROPOSED STIPULATION THEY RELATE TO THE PENDING MOTIONS. THEN, IF JUDGE MATZ AGREED AND SIGNED OFF ON THAT ORDER, THEN, WHAT I WOULD PROPOSE IS THAT I TAKE GOOGLE'S INTERROGATORY MOTION OFF CALENDAR, AND THE RELATED AMAZON MOTION OFF CALENDAR PENDING RESOLUTION OF THE SUMMARY JUDGMENT MOTIONS, BUT THAT I KEEP ON -- FOR THE 22ND OF SEPTEMBER KEEP ON THE OTHER TWO GOOGLE MOTIONS WITH A STRONG HOPE THAT THEY WOULD BE RESOLVED GIVEN THE COMMENTS THAT I'VE MADE EARLIER REGARDING THE PROPRIETY OF A LARGE PERCENTAGE OF THE RFAS AND THE NEED FOR FINANCIAL INFORMATION. AND I KNOW -- I'VE HEARD DR. ZADA THAT THEY'VE GIVEN ALL THEY HAVE, AND MAYBE THEY'LL PERSUADE GOOGLE OF THAT. BUT THAT WOULD AT LEAST SORT OF BIFURCATE OR

TRIFURCATE THE PENDING MOTIONS. AND THEN -- HOW ABOUT THAT? MR. CAHN: THAT SOUNDS LIKE A GOOD APPROACH FROM I GUESS ONE QUESTION I WOULD RAISE

AMAZON'S POINT OF VIEW.

WOULD BE CAN WE GET YOUR IMPRIMATUR ON THAT APPROACH SOMEHOW? THE COURT: WELL, YOU CAN TELL JUDGE MATZ THAT, YOU

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 KNOW, IT MIGHT -- THAT I THINK IT MAKES SENSE TO EXTEND THE AMAZON CUTOFF DATE A REASONABLE PERIOD OF TIME. MR. CAHN: THE COURT: (LAUGHTER.) THE COURT: MR. CAHN: THE COURT: BUT, I MEAN, MORE THAN MY -THAT'S THE BEST WE COULD DO. MORE THAN MY IMPRIMATUR IS THAT HE OKAY. AND HE CAN TAKE MY ADVICE OR LEAVE IT.

SHOULD BE AWARE THAT WE'VE HAD THIS MUTUAL DISCUSSION. MR. CAHN: THE COURT: RIGHT. AND I WAS NOT AWARE THAT THERE WERE

THESE PENDING MOTIONS -- SUMMARY JUDGMENT MOTIONS, AND THAT I'M COGNIZANT OF MY DUTY TO PROCEED WITH MOTIONS THAT ARE NOW UNSTAYED, BUT THAT IT DOES SEEM TO MAKE SENSE TO CARVE OUT THIS EXCEPTION. SO, HOW DOES THAT SOUND? MR. MAUSNER: THE COURT: YOUR HONOR?

YES? WOULD YOU BE WILLING TO -- IF WE CAN

MR. MAUSNER:

TALK ABOUT -- IF PERFECT 10 AND BOTH DEFENDANTS COULD TALK ABOUT THINGS THAT ARE REDACTED IN THE FINANCIAL STATEMENTS, BUT IT MAY BE HELPFUL IF YOU COULD GIVE US SOME GUIDANCE ON THAT. ONE OF THE THINGS THAT WE'VE REDACTED ARE SETTLEMENT AMOUNTS AND WHO WE SETTLED WITH IN OTHER

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 IDEA. MR. MAUSNER: THE COURT: IDEA WHAT I -MR. MAUSNER: AND THE ARGUMENT THAT WE MADE WAS IF WHAT? I HAVE NO LAWSUITS. AND THAT ISSUE HAD BEEN DECIDED BY YOUR HONOR IN ANOTHER CASE, WHICH IS THAT THAT INFORMATION DID NOT HAVE TO BE REVEALED UNTIL IT WAS IN A CONFIDENTIAL SETTLEMENT AGREEMENT. BUT AS TO -I'LL TAKE YOUR WORD FOR IT. I HAVE NO

THE COURT:

I'LL TAKE YOUR WORD FOR IT.

CONFIDENTIAL SETTLEMENT AGREEMENTS HAD TO BE DISCLOSED, IT WOULD DISCOURAGE SETTLEMENT BECAUSE THE PARTIES RELY ON THE CONFIDENTIALITY. SO, THAT'S ONE OF THE ISSUES WOULD BE -- WE'VE TALKED TO THEM ABOUT THAT, AND WE'VE STATED WHAT OUR POSITION IS. THEIR POSITION IS THEY WANT TO GET IT. SO, WE'RE AT

JUGGERNAUTS ON THAT. THE COURT: HOLD ON ONE SECOND, PLEASE.

(PAUSE IN PROCEEDINGS.) THE COURT: ALL RIGHT. OKAY. I'M BACK. I GOT DISTRACTED.

I'M SORRY.

RUN THAT ISSUE BY ME AGAIN QUICKLY, MR. MAUSNER. MR. MAUSNER: STATEMENTS. THE ISSUE IS IN THE FINANCIAL

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 THE COURT: YES. WE'VE GIVEN THEM THE FINANCIAL

MR. MAUSNER:

STATEMENTS, BUT WE'VE REDACTED OUT THE AMOUNT OF SETTLEMENTS IN OTHER CASES AND THE NAME OF THE PARTIES THAT WE SETTLED WITH. THE COURT: UH-HUH. OKAY. AND IT'S OUR POSITION THAT

MR. MAUSNER:

THEY SHOULD NOT GET THIS. THE COURT: HOW ABOUT ATTORNEY'S-EYES-ONLY? I'M SORRY?

MR. MAUSNER: THE COURT:

HOW ABOUT ATTORNEY'S-EYES-ONLY? WELL, IT'S -- WE HAVE ACTUALLY GONE

MR. MAUSNER:

TO SOME OF THE PARTIES THAT WE SETTLED WITH AND ASKED THEM IF THEY WOULD CONSENT TO IT, AND THEY SAID NO. AND I THINK PERFECT 10 ALSO WOULD NOT WANT THIS INFORMATION REVEALED, BUT CERTAINLY THE OTHER SIDE DOESN'T WANT IT REVEALED. YOU KNOW, WE'VE ARGUED THAT AS A MATTER OF PUBLIC POLICY, CONFIDENTIAL SETTLEMENTS SHOULD NOT BE REVEALED BECAUSE THAT WOULD MAKE IT MORE DIFFICULT TO SETTLE CASES -THE COURT: RIGHT, RIGHT. -- IF PARTIES THOUGHT THAT EVEN A

MR. MAUSNER:

CONFIDENTIAL SETTLEMENT AGREEMENT COULD BE DISCLOSED TO SOMEBODY ELSE. SO, YOU KNOW, THERE REALLY ISN'T -- I DON'T THINK

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 ORDER IT? MR. MAUSNER: THE COURT: YES. THERE'S ANYTHING MORE TO DISCUSS ON THAT -THE COURT: I JUST DON'T KNOW HOW USEFUL THAT SO THAT'S

INFORMATION IS ANYWAY TO MOVING THIS CASE FORWARD. ALL I'LL SAY AT THIS POINT.

AND YOU SAY THAT IN ANOTHER CASE I DECLINED TO

WHICH ONE WAS THAT? I CAN'T REMEMBER WHICH ONE IT IS NOW.

MR. MAUSNER:

BUT IT'S PROBABLY IN OUR -THE COURT: (LAUGHTER.) MR. MAUSNER: MINUTE. IT'S 2009. I THINK IT WAS LAST -- WELL, WAIT A WAS IT IN THIS CENTURY OR LAST CENTURY?

IT WOULD HAVE BEEN IN THIS CENTURY. ALL RIGHT.

THE COURT: OKAY.

SO, I GUESS -- SO, THAT'S THE ASSUMPTION I'M AND THE ASSUMPTION IS THAT THERE

WORKING ON FOR THE MOMENT.

WILL BE A STIPULATION -- A PROPOSED STIPULATION ON THE AMAZON CUTOFF DATE PROPOSED TO JUDGE MATZ. DOES WITH THAT. AND WE'LL SEE WHAT HE

AND THAT SHOULD BE DONE TUESDAY -CAN I SAY ONE THING, YOUR HONOR. I

DR. ZADA:

DON'T THINK THAT THE MOTION THAT AMAZON IS CONTEMPLATING FILING, WHICH MY UNDERSTANDING WAS FOR DAMAGES, DOESN'T HAVE ANYTHING TO DO WITH THE INTERROGATORIES. DO WITH FINANCIALS. I THINK IT HAS TO

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 AND SO, IF WE RESOLVE THE FINANCIAL ISSUE, I'M NOT ABSOLUTELY SURE THAT THERE'S ANY REASON TO POSTPONE THE DEADLINE. THE COURT: MR. CAHN: OKAY. AND I'M SURE, THOUGH WELL INTENTIONED,

DR. ZADA IS NOT PRIVY TO ALL THE GROUNDS OF AMAZON'S INTENDED SUMMARY JUDGMENT MOTION. BUT ONE OF THEM -- ONE OF THE

GROUNDS WOULD BE TO CHALLENGE THAT THERE ARE ANY, ANY SHOWING OF ACTUAL DAMAGES IN THIS CASE, WHICH IS WHY THE FINANCIAL INFORMATION IF WE DO IT ON THE OCTOBER 5TH DEADLINE IS IMPORTANT. THE COURT: WELL, WAIT A SECOND. I THOUGHT -- WHEN

I GLANCED AT THE AMAZON MOTION EX PARTE APPLICATION, THE CALENDARED MOTION, MY QUICK LOOKING THROUGH IT LED ME TO THINK THAT IT WAS VERY MUCH RELATED TO GOOGLE'S INTERROGATORY MOTION. MR. CAHN: THE COURT: MR. CAHN: THAT'S CORRECT. OKAY. THE FINANCIAL DISCOVERY IS TEE'D UP IN

THE OTHER GOOGLE MOTION. THE COURT: DR. ZADA: OKAY. YOUR HONOR, LET ME MAKE SURE YOU WE FILED A SUMMARY JUDGMENT MOTION

UNDERSTAND WHAT HAPPENED.

AGAINST AMAZON IN I THINK OCTOBER OF '08, ALMOST A YEAR AGO. WE HAD I THINK 500 SAMPLE ISSUES -- IMAGES APPROXIMATELY IN

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 THAT MOTION. THE ALL THE COPYRIGHT MATERIALS, THE REGISTRATIONS, SO, WE HAD A FAIRLY

DEPOSIT MATERIALS WAS INCLUDED.

LARGE SAMPLING IN THAT MOTION. I THINK WHAT AMAZON IS ASKING ABOUT IS TO FILE -AND THEY FILED SUMMARY JUDGMENT MOTIONS AGAINST US. THEY'RE

TALKING ABOUT SOME KIND OF A DAMAGES MOTION THAT I DON'T KNOW EXACTLY WHAT THE GROUNDS WOULD BE. IT'S PRIMARILY FINANCIALLY RELATED. BUT MY UNDERSTANDING IS AND WE'VE ALREADY GIVEN

THEM BASICALLY ALL THE FINANCIAL INFORMATION WE COULD POSSIBLY GIVE THEM. THE COURT: DISCUSS THAT. DR. ZADA: THE COURT: YES, I DON'T WANT TO CONFUSE THAT HERE. ALL RIGHT. SO, LET ME JUST SUM UP ALL RIGHT. I'LL LET YOU INDEPENDENTLY

WHERE I BELIEVE WE ARE. IS MY FRIEND. OKAY.

I'M BEING REDUNDANT, BUT REDUNDANCY

MY UNDERSTANDING IS THAT AMAZON AND P10

WILL JOINTLY PROPOSE TO JUDGE MATZ ASAP THAT THE DISPOSITIVE MOTION CUTOFF DATE BE EXTENDED A COUPLE OF MONTHS AND WILL STATE THE REASONS THEREFOR. JUDGE MATZ WILL HOPEFULLY RULE ON THAT SOMETIME NEXT WEEK. IF HE GRANTS THAT, THEN, AMAZON'S MOTION WILL NOT BE CALENDARED FOR THE CURRENT -- THE PREVIOUSLY FILED MOTION WILL NOT BE HEARD ON THE 22ND, NOR WILL -- AND THAT WILL ALSO

32 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 TRIGGER AN UNDERSTANDING THAT GOOGLE'S INTERROGATORY MOTION WILL BE TABLED. HOWEVER, THE REMAINING TWO GOOGLE MOTIONS

WILL REMAIN ON CALENDAR WITH THE STRONG HOPE THAT THEY WILL BE RESOLVED BEFORE THE 22ND BY THE PARTIES -- NOT ME. THERE WILL BE A GOOD FAITH ATTEMPT TO SETTLE THOSE. DR. ZADA: YOUR HONOR -YOUR HONOR, I THINK WE HAVE TO TALK THAT

MR. MAUSNER:

TO THEM ABOUT THIS AND SEE, IN FACT, WHAT IT IS THAT THEY'RE GOING TO PROPOSE BEFORE WE CAN SAY THAT WE WOULD AGREE TO THAT. I THINK THAT'S A POSSIBILITY, BUT IT'S NOT A DEFINITE.

AND, YOU KNOW, THERE MAY BE SOME ISSUES THAT COME OUT OF THAT AS WELL. THE COURT: OUT OF WHAT? ISSUES OF WHAT? MAY COME OUT OF WHAT?

MR. MAUSNER: THE COURT:

I'M SORRY.

MR. MAUSNER:

IF THERE IS GOING TO BE SUCH AN

AGREEMENT, THERE MAY HAVE TO BE SOME OTHER ISSUES RESOLVED AS WELL. THE COURT: OKAY. OKAY.

MR. MAUSNER: THE COURT:

I DON'T KNOW WHAT YOU MEAN, BUT OKAY. OKAY. SO, WHAT I WOULD PROPOSE IS

MR. MAUSNER:

THAT WE TALK ABOUT THIS, SEE IF WE CAN REACH THAT AGREEMENT. AND, THEN, IF WE COULD, YOU KNOW, JUST RECONVENE THIS TO FURTHER DISCUSSIONS.

33 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: RECONVENE THIS -- THIS JOINT -YEAH, THE JOINT THING. OR WE CAN

MR. MAUSNER:

TELL YOU THAT WE DID RESOLVE IT. THE COURT: THAT'S FINE. BUT IF WE DIDN'T RESOLVE IT -THAT'S FINE.

MR. MAUSNER: THE COURT: OKAY. MS. KINKAID: THE COURT:

THAT'S FINE.

YOUR HONOR?

YES. VALERIE KINKAID.

MS. KINKAID:

RIGHT NOW WHEN ARE THE SUPPLEMENTAL MEMORANDA DUE? THE COURT: WELL, RIGHT NOW THEY WOULD BE DUE I

GUESS NEXT TUESDAY, 14 DAYS FROM -- MAYBE THE RULE CHANGED. MAYBE IT'S EVEN 21 DAYS. MR. CAHN: MAYBE THEY'RE LATE. I DON'T KNOW.

IT'S VERY HARD FOR US TO PROVIDE A

SAMPLING ISSUE BY TUESDAY, YOUR HONOR. THE COURT: I DON'T KNOW HOW TO ANSWER THE QUESTION

UNTIL I KNOW WHETHER THE INTERROGATORIES MOTION IS GOING FORWARD. I'M HOPING THAT IT'S NOT GOING TO GO FORWARD. DR. ZADA: NECESSARY -THE COURT: YES. CAN WE SCHEDULE A NEW CONFERENCE CALL IF

DR. ZADA: -- EITHER NEXT WEEK OR EARLY THE WEEK AFTER, YOUR HONOR? THE COURT: YES, YES, YES.

34 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 DR. ZADA: BECAUSE MY SUSPICION IS THAT THE

SEPTEMBER 22ND, THE HEARING ON THE INTERROGATORIES IS GOING TO HAVE TO BE MOVED BACK ONE WAY OR THE OTHER. AND THAT WE

COULD GO FORWARD WITH THE HEARING ON THE 22ND WITH REGARD TO THE REDACTED FINANCIALS AND THE OTHER ISSUE -- THE RFA. THE COURT: I WANT YOU REALLY TO FOCUS ON RESOLVING

THE RFAS AND THE FINANCIALS, REALLY, REALLY BE FOCUSING -DR. ZADA: BECAUSE THE REASON, YOUR HONOR, THAT WE

ARE A LITTLE RELUCTANT TO ANSWER THIS IS BECAUSE WE BELIEVE THAT THE ONLY THING THAT AMAZON NEEDS IS THE FINANCIALS, AND THAT THERE'S NOTHING ELSE TO REALLY TALK ABOUT AS TO WHY THEY -- WE DON'T REALLY WANT TO DELAY THIS THING FOR THREE MONTHS UNLESS THERE'S A GOOD REASON TO DO SO. AND UNTIL WE TALK TO

THEM AND ARE TOLD THAT, WE WOULD PREFER TO RESOLVE THE FINANCIAL ISSUE AS SOON AS POSSIBLE -- WHICH IS I THINK WHAT THEY NEED TO GO FORWARD ON THEIR MOTION FOR SUMMARY JUDGMENT. THE COURT: ALL RIGHT. RIGHT NOW? MR. MAUSNER: LET'S GET -OKAY. WHAT ELSE DO WE NEED TO ACCOMPLISH

THE COURT: -- ACCOMPLISHED NOTHING. MR. MAUSNER: LET'S GET, YOU KNOW, WHAT IS COMING

UP THAT WE HAVE TO DO AND WHEN WE WOULD RECONVENE. THE COURT: WELL, WHY DON'T WE PLAN ON -- WHY DON'T

WE PLAN ON TALKING -- HOW ABOUT MONDAY, THE 14TH?

35 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 HONOR. MR. MAUSNER: MR. CAHN: AVAILABLE THEN. OKAY. THAT'S GOOD. I MEAN, I'M DR. ZADA: THAT'S FINE. I BELIEVE THAT'S OKAY FOR GOOGLE, YOUR

MR. ZELLER:

YES, THAT WOULD WORK.

SURE. I DON'T REALLY -- LET ME GO BACK TO THE BASED ON THE PAPERS AND

THE COURT:

QUESTION ABOUT SUPPLEMENTAL MEMORANDA.

BEFORE ME, I DON'T WANT ANY SUPPLEMENTAL MEMORANDA.

THERE'S NOTHING YOU'RE GOING TO TELL ME THAT'S GOING TO HELP ANYONE. THE QUESTION IS WHETHER REALLY THE MOTION DATE WOULD NEED TO BE CONTINUED SO THAT THE PARTIES CAN ENGAGE IN IN A NEW AND DIFFERENT APPROACH OF SAMPLING -DR. ZADA: I THINK WE HAVE TO POSTPONE IT, YOUR

HONOR, BECAUSE WE'RE NOT GOING TO BE ABLE TO COME UP WITH MEANINGFUL, INTELLIGENT SAMPLING ALTERNATIVES -THE COURT: WELL, BUT IF THE INTERROGATORY MOTION

IS GOING TO BE TABLED, THEN WE CAN PROCEED WITH THE OTHER TWO IF YOU CAN'T RESOLVE THEM. BRIEFING ON THOSE. AND I DON'T NEED SUPPLEMENTAL

THERE REALLY IS NO NEED FOR IT. BUT JUST TO CLARIFY, YOUR HONOR.

MS. KINKAID:

THEN, NONE OF THE PARTIES SHOULD SUBMIT SUPPLEMENTAL MEMORANDA ON TUESDAY, THE 8TH. THE COURT: ON ANY DAY REGARDING ANY OF THE MOTIONS

36 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 SECOND. (OFF THE RECORD.) (RECORDED PROCEEDINGS CONCLUDED 3:48 P.M.) IN THEIR PRESENT FORM. MS. KINKAID: APPLIES TO EVERYONE. THE COURT: OH, OF COURSE. OF COURSE. I JUST WE'RE AGREEABLE TO THAT SO LONG AS IT

CAN'T IMAGINE WHAT MORE NEEDS TO BE SAID IN THEIR PRESENT FORM. OKAY. SO, LET'S TALK -- LET'S HAVE A CONFERENCE I WANT TO SAY TEN WHAT DO YOU WANT?

CALL ON THE 14TH AT -- I DON'T KNOW. O'CLOCK.

OR DO YOU WANT THE AFTERNOON? MR. MAUSNER:

COULD WE DO THAT IN THE AFTERNOON,

YOUR HONOR? THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: THE COURT: ALL RIGHT. LET'S SAY THREE O'CLOCK.

YOU SAID THREE O'CLOCK? YES. OKAY?

THAT'S FINE FOR US. AND MAYBE WE'LL HAVE A RULING FROM

JUDGE MATZ BY THEN AS TO THE STIPULATION. MR. MAUSNER: THAT'S TRUE. WELL, LATE SUMMER COULD

EITHER BE LABOR DAY OR THE SOLSTICE WHICH IS A LITTLE BIT LATER. THE COURT: I'M GOING TO GO OFF THE RECORD FOR A

37 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 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN 9/30/09 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE