Perfect 10 Inc v. Google Inc et al

Filing 596

EX PARTE APPLICATION to Compel re: Perfect 10, Inc.: Defendant Google Inc.'s Joinder in Defendants Amazon.com, Inc. and Alexa Internet's Ex Parte Application for an Order Compelling Perfect 10, Inc. to Affix Production Numbers to its Production and to Reimburse Defendants for Costs and Request for a Telephonic Conference, and Response to Perfect 10, Inc.'s Opposition Thereto filed by Defendant and Counterclaimant Google Inc. (Attachments: #1 Declaration of Thomas Nolan in Support Thereof, and Exhibits Thereto)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 596

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 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)] GOOGLE INC.'S JOINDER IN DEFENDANTS AMAZON.COM, INC. AND ALEXA INTERNET'S EX PARTE APPLICATION FOR AN ORDER COMPELLING PERFECT 10, INC. TO AFFIX PRODUCTION NUMBERS TO ITS PRODUCTION AND TO REIMBURSE DEFENDANTS FOR COSTS AND REQUEST FOR A TELEPHONIC CONFERENCE, AND RESPONSE TO PERFECT 10'S OPPOSITION THERETO [Declaration of Thomas Nolan filed concurrently herewith] Hon. Stephen J. Hillman Date: None Set Time: None Set Place: Courtroom 550 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

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
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Defendants.

GOOGLE INC.'S JOINDER IN AMAZON.COM, INC. AND ALEXA INTERNET'S EX PARTE APPLICATION Dockets.Justia.com

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Pursuant to Local Rule 7-19, and for all the reasons identified by

2 Amazon.com, Inc. and Alexa Internet, Google Inc. hereby joins in Amazon.com, 3 Inc. and Alexa Internet's Ex Parte Application for an Order Compelling Perfect 10, 4 Inc. ("P10") to Affix Production Numbers to its Production and to Reimburse 5 Defendants for Costs and Request for a Telephonic Conference, filed October 29, 6 2009 (Docket No. 355 in the Amazon case) (the "Ex Parte Application"). To avoid 7 burdening the Court with unnecessarily repetitive briefing, Google incorporates by 8 reference all arguments and evidence in the Ex Parte Application (and supporting 9 papers) as though fully set forth herein.1 The Ex Parte Application should be 10 granted, because P10's Opposition fails to address (let alone refute) the merits of the 11 Application. 12 Google writes separately here to respond to various inaccuracies in P10's 13 opposition brief, and to address P10's effort to use the Ex Parte Application as a 14 vehicle to interject various of its own new and unrelated discovery issues before this 15 Court. P10's arguments are both irrelevant and meritless and should be rejected. 16 Indeed, because P10 failed to meet and confer with Defendants before presenting 17 these issues to the Court, P10 should be sanctioned. 18 I. 19 20 CONTRARY TO P10'S PROTESTATIONS, THE MATTERS PRESENTED IN THE EX PARTE APPLICATION ARE URGENT. As the Court is aware, Google's motion to compel P10 to bates stamp the

21 entirety of its past document production remains pending. However, P10 continues 22 to produce documents to Defendants, including two productions on October 15 and 23 22, 2009 pertaining to the Court's October 6, 2009 Order compelling P10 to produce 24 various financial and damages-related documents. 25 26 Google informed Perfect 10 of its intention to file this Joinder and Response 27 on a ex parte basis via email at 2:24 p.m. on October 30, 2009. Declaration of Thomas Nolan ("Nolan Decl.") filed concurrently herewith, at ¶ 3. 28
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See Declaration of Anthony

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1 Malutta in Support of the Ex Parte Application (Docket No. 355-3), at ¶¶ 3 & 5. 2 P10 also has been ordered to produce additional financial materials on or before 3 November 9, 2009. See October 6, 2009 Order at ¶ 3. All of these document 4 productions are relevant to the upcoming deposition of P10 accountant Bruce Hersh, 5 currently set for November 19 and 20. By the Ex Parte Application, Amazon (and 6 Google) have asked this Court to, among other things, require Perfect 10 to affix 7 control numbers to these particular document productions, which will be critical to 8 Mr. Hersh's deposition taking place in just over two weeks. Prompt court 9 intervention is now required to (1) ensure that Defendants are able to locate and 10 utilize P10's recently-produced financial documents in time for the Hersh 11 deposition, and (2) put an end to the control-numbering issue on a going-forward 12 basis. 13 II. 14 15 16 P10 HAS FAILED TO IDENTIFY ANY REASON WHY IT CANNOT USE THE ADOBE BATES STAMPING FEATURE ON A GOINGFORWARD BASIS. Contrary to P10's assertions, this is not simply a rehash of Google's pending

17 motion to compel. Applying control numbers to documents on a going-forward 18 basis is not the same issue as applying control numbers to (and re-producing) P10's 19 entire past production. Perfect 10 has proffered no basis for its refusal to apply 20 control numbers to its document productions on a going-forward basis, using the 21 Adobe bates-stamping feature Google has identified for P10. Indeed, P10 did use 22 the Adobe bates-stamping feature to apply control numbers to a recent production 23 on behalf of one of its employees (the Sheena Chou documents), but not to its other 24 recent productions--and has insisted that it will not bates stamp any future 25 productions absent a court order. Nolan Decl., at Ex. A (10/25/09 Email from J. 26 Mausner to T. Nolan). Unfortunately, P10 has made clear that it will not consent to 27 a resolution of this issue, so a court order will be necessary. 28
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Further, the Garcia Declaration P10 submits in opposition to the Ex Parte

2 Application does not even mention P10's October 15 and 22 productions, or future 3 P10 productions, which are the subject of the Ex Parte Application. Instead, the 4 Garcia Declaration concerns the entirety of P10's past production. And even as to 5 that subject, Mr. Garcia does not address the issue of how much it would cost P10 6 to employ the Adobe bates stamping feature. Instead, Mr. Garcia declares to what 7 his company would charge P10 to convert its entire document production to TIFF 8 format, and then bates stamp the TIFF'ed documents.2 Because P10 has not 9 submitted a declaration regarding the cost of using the Adobe bates stamping feature 10 on its past or future productions, P10 and its expert Mr. Garcia implicitly confirm 11 that using Adobe would be inexpensive. 12 III. 13 14 15 P10'S LATEST HARD DRIVE PRODUCTION IS INDECIPHERABLE AND ANY FINANCIAL DOCUMENTS PRODUCED THEREON ARE BURIED WITHIN THOUSANDS OF PAGES OF SCREENSHOTS. Moreover, Perfect 10's October 22 document production, which purportedly

16 contains the financial and damages-related documents P10 was ordered to produce 17 (see October 6, 2009 Order) is in fact an 18.2 Gigabyte hard drive containing P10's 18 now-familiar assortment of screenshots of purported search results from various 19 20 21 22 23 24 25 26 27 28
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Declaration of Carlos Garcia re: Cost of Bates Numbering Perfect 10's Document Production (Docket No. 356-2), at ¶ 4 ("Our company does such jobs by first converting the entire production to TIFF format to make sure the Bates numbers are the same size, and then converting to Adobe."). Of course, the size of the font of the control numbers being applied to P10's documents is irrelevant, and is merely a new excuse by P10 to avoid using the Adobe Bates stamping feature after Google demonstrated that Perfect 10's cost excuse lacked merit. If affixing larger bates stamps by TIFF'ing its production will cost P10 $250,000 (according to P10's witness Mr. Garcia), and affixing smaller bates stamps using Adobe will cost P10 nothing besides some paralegal processing time, then P10 should opt for (or be ordered to employ) the Adobe method. What matters is that some control numbers (of any size) be affixed to P10's massive and undifferentiated production. -3-

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1 search engines, purported DMCA notices, screenshots of "whois" results, non2 searchable scans of certain contracts, a handful of emails, and various other 3 documents spread over dozens of folders and sub-folders. Nolan Decl. ¶ 7. P10 4 claims it produced these documents as it maintains them in the "usual course of 5 business" (Opposition at 3), but that cannot be true--the lion's share of documents 6 in this production are related to litigation, not any of P10's core businesses. And 7 most importantly, there is no labeled folder indicating that it contains the documents 8 responsive to the October 6 Order (such as "October 6, 2009 Order," " financia l 9 documents," "damages-related documents," or something of that nature). Id. As a 10 result, Google and Amazon are simply left to search for and guess at which of the 11 thousands of documents produced are, in P10's opinion, responsive to which of the 12 compelled Requests. Since P10 elected to produce the court-ordered financial 13 documents scattered amongst tens of thousands of pages of other documents 14 apparently unrelated to the October 6, 2009 Order, P10 should be required to 15 identify the location of the documents responsive to each Request in that Order. 16 IV. 17 18 19 A COURT ORDER IS NECESSARY THE BECAUSE P10 HAS BY EFFECTIVELY KILLED SECOND PROPOSAL

DEMANDING MODIFICATIONS THAT WOULD EVISCERATE IT. In briefing following the September 22, 2009 hearing on Google's pending

20 discovery motions, and in response to concerns expressed by the Court (and by 21 P10), Google proposed a compromise resolution of Google's Motion to Compel 22 Bates-numbering: namely, that in lieu of bates-numbering its document 23 productions, P10 be required to identify any of its non-bates numbered documents 24 used in this litigation by providing a declaration containing their file path(s) and 25 production date(s) (the "Second Proposal"). Following the Court's expression of a 26 preference for the Second Proposal at the October 9 telephonic conference, Google 27 initiated meet and confer efforts to address P10's only stated concern with it--that 28 P10 not have to provide this information for proposed deposition exhibits five days
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1 in advance of the scheduled depositions.3 Despite this modification, P10 refused to 2 agree to the Second Proposal, instead raising a host of new excuses and proposing 3 modifications that would render the Second Proposal essentially useless. 4 First, Perfect 10 insists that the Second Proposal should apply to all parties, 5 including Defendants. This demand is illogical and unnecessary, since of course 6 Defendants have affixed control numbers to their productions. Nor may P10 shift 7 the burden of identifying P10's own documents onto Defendants--because P10 has 8 steadfastly refused to bates-stamp its production, it must live with the consequences 9 of that election, including the fact that when Defendants use P10's documents in 10 court proceedings, they necessarily will be unstamped.4 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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See Declaration of Jeffrey Mausner dated October 30, 2009 (Docket No. 3563) ("Mausner Decl."), Ex. 1 at p.6 (10/9/09 email from Kassabian to Mausner). Specifically, with regard to depositions, Google proposed that Perfect 10 identify non-bates numbered documents at the time they are offered to the witness, either via written declaration containing the file path and production date, or by reading that information into the record. Id. 4 Contrary to P10's insinuations, in this litigation Google has never used a Google-produced document that was not bates-numbered. P10's accusation that Google submitted evidence in support of its DMCA Motions for Summary Judgment that it did not bates-number is in fact a reference to P10's own purported DMCA notices (comprising massive DVDs and hard drives which Perfect 10 sent to Google under the DMCA). Given their volume and the fact that Perfect 10 plainly already had these materials, Google did not re-produce them back to Perfect 10 during discovery (see Nolan Decl., at Ex. B (6/3/09 Letter from A. Roberts to J. Mausner)), but Google of course submitted these documents as they were transmitted by P10--without bates stamps. Since these were P10 documents, P10-- not Google--is to blame for that lack of bates-stamping. Similarly, Google showed certain P10-produced documents to Perfect 10 employee Sheena Chou during her deposition. Nolan Decl. ¶ 8. These did not bear bates numbers because P10 never affixed them. Id. And during its deposition of On Line Creations, Google used certain printouts from On Line Creations' own public website. Again, these were not Google-produced documents. -5-

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Second, P10 proposes to modify the Second Proposal to exclude any files

2 included on an "external disk." This would eviscerate the entire point of the Second 3 Proposal, which seeks to provide Defendants and the Court with proof that any 4 proffered P10 documents were indeed produced. The need for identification of 5 documents only increases with the number of documents P10 submits in court 6 proceedings. P10's proposed exclusion of "external disks" would be an exception 7 that completely swallows the rule. 8 Third, Perfect 10 refuses to agree to identify the file path and production date 9 in declaration form. P10 has never given a reason why it could not provide this 10 information in a declaration, and the only apparent reason to resist declaring to this 11 information is to dodge responsibility for its accuracy. Without a sworn statement, 12 neither the Court nor Google can be sure that the documents are properly identified.5 13 Because P10 has made clear that it will not agree to the Second Proposal, a 14 Court order will be necessary in the event the Court maintains its preference to 15 proceed with the Second Proposal. 16 V. 17 18 19 P10'S ATTEMPT TO INTERJECT NEW DISCOVERY ISSUES ABOUT WHICH IT HAS NOT COMPLETED MEET AND CONFER SHOULD BE REJECTED, AND SANCTIONS SHOULD BE IMPOSED. In its opposition to the Ex Parte Application concerning the issue of P10's

20 recent discovery failures, P10 makes several unsubstantiated accusations regarding 21 Google's discovery conduct in this case. In addition to being inappropriate in the 22 context of opposing an ex parte application in a different case, these accusations (1) 23 have not been the subject of proper meet and confer efforts, and (2) are false. 24 25 Perfect 10 claims that a portion of Google's document production it refers to 26 as Google's "DMCA log" is "unsearchable." This is false. Google's electronic 27 document production, including the documents P10 appears to be referring to as DMCA logs, have been produced in a text-searchable format. Nolan Decl. ¶ 6. 28
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First, P10 submits a meet and confer letter it sent Google just over a week

2 ago, in which it makes conclusory, unsubstantiated claims that Google has not 3 produced unspecified documents. See Mausner Decl., Ex. 2. As can be seen, P10's 4 letter fails to identify even a single allegedly " missing" document or provide any 5 information Google could use to investigate P10's unsupported accusations. Google 6 is in the process of meeting and conferring with P10 to seek the factual basis for 7 P10's accusations, so that Google may investigate and respond to them. Nolan 8 Decl. ¶ 4. Until that process is complete, P10's attempt to raise these purported 9 issues now, in this context, is premature and should be rejected out of hand. 10 Second, P10's opposition references six of its Document Requests (Nos. 34211 47) and claims that Google's document production was insufficient. Opp. at 6. P10 12 has never even mentioned these particular document requests to Google, much less 13 requested to meet-and-confer under Local Rule 37-1 regarding Google's responses 14 thereto. Nolan Decl. ¶ 5. 15 P10 takes the position that these and other of its purported discovery issues Opp. at 8. What P10 describes as 16 are so important that P10 should not be required to engage in "unnecessary motion 17 practice" to obtain an order on them. 18 "unnecessary motion practice" might fairly also be called "compliance with Local 19 Rules and court orders." P10 may not jettison the Local Rules governing discovery 20 disputes by interjecting these new (and wholly distinct) issues into its opposition to 21 the Ex Parte Application. Indeed, it was P10's inclusion of extraneous discovery 22 issues from the Google case in its opposition to Amazon's Ex Parte Application that 23 forced Google to have to submit this brief in order to respond to them. 24 Unfortunately, this is not the first time P10 has attempted to sandbag 25 Defendants and waste the Court's time with new discovery issues that were not 26 previously the subject of meet and confer. For example, at the September 22, 2009 27 hearing on Google's motions to compel, P10 attempted to raise and argue certain of 28 its own new discovery issues it had not first raised with Google. Nolan Decl., Ex. C
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1 (9/22/09 Hearing Transcript, at 147:22-148:15). The Court rightfully declined to 2 hear P10's improperly-raised issues at that time. Id. Similarly, on November 14, 3 2008, P10 sought to place significant limits on Google's discovery efforts via a 4 purported "Joint Letter" faxed to the Court. Nolan Decl., Ex. D. Further, in its 5 opposition to an earlier Ex Parte application submitted by the Amazon Defendants, 6 Perfect 10 improperly requested a complete stay on discovery in both the Google 7 and Amazon cases, pending a ruling on its own summary judgment motion in the 8 Amazon case, without first meeting and conferring with Google on the issue. Nolan 9 Decl., at Ex. E (Perfect 10's Response to Defendants Amazon.com and Alexa 10 Internet's Ex Parte Application to Continue Summary Judgment Filing Deadline, at 11 p.6). Indeed, P10 has even used this improper tactic as a litigation threat. For 12 example, in its rejection of Google's Second Proposal discussed above, P10 13 threatened to use a further telephone conference with this Court regarding the bates 14 stamping issue as a pretext to "bring up other discovery issues at that time, including 15 Google's refusal to identify its AdSense and hosting clients," again without properly 16 identifying or seeking to meet-and-confer with Google about such "issues" in 17 advance. Mausner Decl, Ex. 1 at p.1 (10/25/09 Email from J. Mausner to T. Nolan). 18 P10's failure to comply with its meet and confer obligations not only dooms 19 its "requests" from the start, it also can--and should--be the basis for sanctions 20 against P10 and/or its counsel. See Local Rule 37-4 ("The failure of any counsel to 21 comply with or cooperate in the foregoing procedures may result in the imposition 22 of sanctions."). P10's pattern of disregard for the Rules shows no signs of abating. 23 P10 should be sanctioned in the amount of $1,000, to be paid to the Court, to put an 24 end to these abuses of the Court's time and resources. 25 26 27 28
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1 DATED: November 2, 2009 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
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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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