Perfect 10 Inc v. Google Inc et al

Filing 591

REPLY REQUEST to Clarify re: the Court's October 6, 2009 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 #590 , PERFECT 10'S RESPONSE TO GOOGLE INC.'S REQUEST FOR CLARIFICATION RE: THE ORDER COMPELLING PERFECT 10 TO PRODUCE COMPLETE AND UNREDACTED FINANCIAL DOCUMENTS AND OTHER DAMAGES-RELATED DOCUMENTS, AND AMAZON.COM AND ALEXA INTERNETS JOINDER THEREIN, filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Declaration DECLARATION OF JEFFREY N. MAUNSER IN RESPONSE TO GOOGLE INC.'S REQUEST FOR CLARIFICATION RE: THE ORDER COMPELLING PERFECT 10 TO PRODUCE COMPLETE AND UNREDACTED FINANCIAL DOCUMENTS AND OTHER DAMAGES-RELATED DOCUMENTS)(Mausner, Jeffrey)

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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 054753 AHM (SHx) DISCOVERY MATTER

PERFECT 10'S RESPONSE TO GOOGLE INC.'S REQUEST FOR GOOGLE, INC., a corporation, CLARIFICATION RE: THE Defendant. ORDER COMPELLING PERFECT ______________________________ 10 TO PRODUCE COMPLETE AND UNREDACTED FINANCIAL AND COUNTERCLAIM DOCUMENTS AND OTHER DAMAGES-RELATED PERFECT 10, INC., a California DOCUMENTS, AND corporation, AMAZON.COM AND ALEXA Plaintiff, INTERNET'S JOINDER THEREIN v. AMAZON.COM, INC., a corporation, et al., Defendant. Before Judge Stephen J. Hillman Date: None Set Time: None Set Place: Courtroom 550 Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

Perfect 10's Response To Google Inc.'s Request For Clarification Re: The Order Compelling Perfect 10 to Produce Complete and Unredacted Financial Documents and Other Damages-Related Documents, and Amazon.com and Alexa Internet's Joinder Therein

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I.

INTRODUCTION. Google's request for clarification of this Court's October 6, 2009 Order

regarding financial documents is an improper, belated request for reconsideration. As a threshold matter, Google mischaracterizes Perfect 10's position on the requested clarification. (Google did not include in its exhibits the correspondence between counsel on this matter, but Perfect 10 does. See Exhibits 1 and 2 to the Mausner declaration.) Perfect 10 never said it construed the Court's Order as a Protective Order. Perfect 10 stated that it disagreed with Google's position and that given the Court Order and rulings, the production of the Microsoft settlement agreement is not required. Moreover, there is no need for clarification ­ the language is clear but Google has only quoted a snippet in its request instead of all of the applicable language. Moreover, Google is requesting that this Court find that defendants are somehow entitled to yet more information regarding confidential settlement agreements in other actions based on its incorrect interpretation of the Order. Google and Amazon already have received all of the information the Court ordered Perfect 10 to produce at the September 22, 2009 hearing regarding the Microsoft settlement, and Google has made absolutely no showing as to why any additional information is necessary. Finally, this Court's Order in Perfect 10 v. Net Management Services, et al., attached as Exhibit 3 to the Mausner declaration, underscores that there is no reason to disclose any additional settlement information. II. GOOGLE'S REQUEST SHOULD BE DENIED. A. Google Mischaracterizes Perfect 10's Position. In response to Google's October 15 letter request that Perfect 10 agree to Google's incorrect interpretation of the Court's Order, Perfect 10's counsel wrote the following to Google's counsel: Perfect 10 does not agree with Google's interpretation. As you know,
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Perfect 10 has taken the position that in light of the Court's rulings regarding financial documents, the production of the Microsoft settlement agreement is not required. (Attached as Exhibit 1 to the Mausner declaration is a copy of the letter to Jeffrey Mausner from Rachel Kassabian, dated October 15, 2009; attached as Exhibit 2 is the email to Ms. Kassabian from Mr. Mausner in response, dated October 18, 2009.) B. The Court's Order Clearly States That Perfect 10 Is Not Required To Disclose Any Additional Settlement Information. The following is the applicable language regarding settlement information in the Court's Order, Paragraph 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. (Google asked this Court not to include the language emphasized, but it was included by the Court in its Order.)
Perfect 10's Response To Google Inc.'s Request For Clarification Re: The Order Compelling Perfect 10 to Produce Complete and Unredacted Financial Documents and Other Damages-Related Documents

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The language of the Order clarifies that Perfect 10 is not required to produce any additional settlement information. Thus, Google is effectively belatedly moving for reconsideration. Google's request for modification is nothing other than an attempt to eviscerate the language of the Court's Order so that it can then seek to obtain additional settlement information, when the plain language of the Court Order clearly states that "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...." (Order, Para. 2.) C. In the Perfect 10 v. Net Management Case, This Court Did Not Require The Disclosure Of Any Third-Party Settlement Information, Let Alone The Disclosure Of The Agreements Themselves, Upholding The Strong Public Policy Against Disclosure Of Confidential Settlement Documents. The Court's Order in Perfect 10 v. Net Management Services, et al., CV02-3735-LGB (SHx), underscores that the Court's Order here should not be modified. (See Order dated July 21, 2003, a copy of which is attached as Exhibit 3 to the Mausner Declaration.) In that litigation, Perfect 10 was not required to provide any third-party settlement information, let alone the agreements themselves. In the Perfect 10 v. Net Management Order, this Court held: The court concludes that the settlement agreements and related settlement documents should not be produced. Not only should the strong public policy cautioning disclosure of confidential settlement documents be honored in this case, but the court concludes that the settlement documents have no relevance to Perfect 10's claims against the defendants in this case.... (Exhibit 3, p. 2, emphasis added.)
Perfect 10's Response To Google Inc.'s Request For Clarification Re: The Order Compelling Perfect 10 to Produce Complete and Unredacted Financial Documents and Other Damages-Related Documents

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D.

Other Courts Have Not Required The Disclosure Of ThirdParty Settlement Information, Based On the Strong Public Policy Against Disclosure of Confidential Settlements.

Other courts have come to the same conclusion. For example, in ButtaBrinkman v. FCA Intern., Ltd.,164 F.R.D. 475 , 476-77 ( N.D. Ill. 1995), the court held: Finally, the defendant contends that it should not be required to turn over confidential settlement agreements reached in other cases involving sexual harassment. FCA argues that the strong congressional policy favoring settlement weighs in favor of keeping such documents protected, so long as the information is available through other means. See Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 554-55 (E.D.Cal.1990) (denying motion to compel production of documents containing information about confidential settlement discussions); Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y.1982) (denying motion to compel production of settlement agreement); see also Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 888 F.Supp. 1427, 1441 (N.D.Ill.1995) ("And while there is simply no legitimate public interest to be served by disclosing settlement agreements, the parties to the agreement are likely to have a compelling interest in keeping the settlement amount confidential.") (quotations omitted). We find this reasoning compelling. Absent a showing by the plaintiff that she will be unable to obtain the relevant information through other discovery requests or interrogatories, we believe these settlement documents ought to retain their confidentiality. Accordingly, we sustain this portion of FCA's objection, and deny the plaintiff's motion to compel the production of confidential 4

Perfect 10's Response To Google Inc.'s Request For Clarification Re: The Order Compelling Perfect 10 to Produce Complete and Unredacted Financial Documents and Other Damages-Related Documents

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settlement agreements reached with other employees. Google and Amazon.com have already received the information regarding the amount of the Microsoft settlement through other means, from the financial statements, which were produced on October 16 pursuant to the Court's Order. See also Davenport v. Indiana Masonic Home Foundation, Inc, 2003 WL 1888986 at *3 (S.D. Ind. 2003) ("Settlement serves an important role in expediting and improving the efficiency of the litigation process. See Grove Fresh Distribs., Inc. v. John Labatt Ltd., 888 F.Supp. 1427, 1441 (N.D.Ill.1995). Thus, courts are generally reluctant to order disclosure of negotiations or documents related to a settlement agreement."); Folb v. Motion Picture Industry Pension & Health Plans, 16 F.Supp.2d 1164, 1174-75 (C.D. Ca. 1998). III. CONCLUSION. Contrary to the expectations of Perfect 10 and the parties that settled with Perfect 10, the amounts of the settlements have already been disclosed to Google and Amazon.com. There is no plausible reason that the confidential settlement agreements, or any other information regarding those confidential settlements, has to be disclosed. It will certainly discourage settlements that parties want to keep confidential, if courts order that such settlement agreements be produced in subsequent litigation. That is the reason for the strong public policy against disclosure of confidential settlement documents. The Court should deny Google's request in its entirety. Dated: October 23, 2009 Respectfully submitted, Law Offices of Jeffrey N. Mausner Jeffrey N. Mausner By: ________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc. 5

Perfect 10's Response To Google Inc.'s Request For Clarification Re: The Order Compelling Perfect 10 to Produce Complete and Unredacted Financial Documents and Other Damages-Related Documents