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 Att. 1

2 3 4 5 6 7 8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller {Bar No. 196417} [e-mail] 855 South Figueroa Street, 10th Floor Los Angeles, California 900172543 Telephone: 213} 443-3000 Facsimile: 213} 443-3100 Charles K. erhoeven.(Bar No. 1701 S 1) [e-mail] 50 California Street, 22nd Floor San Francisco California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian quinnemanuel.com 555 Twin Dolphin rive, Suite 560 Redwood Shores, California 94065

9 Attorneys for Defendant GOGGLE INC. 10 11 12 13 14 15 vs. 16 GOGGLE INC. a corporation; and 17 DOES 1 thraug^i 100, inclusive, 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a California 21 '', corporation, 22 23 vs. Plaintiff, Defendants.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, DECLARATION OF THOMAS NOLAN IN SUPPORT OF GOGGLE INC.' S JOINDER IN DEFENDANTS AMAZON.COM, INC. AND ALEXA INTERNET'S EX PARTE APPLICATION FOR AN ORDER COMPELLING PERFECT 1.0, INC. TO AFFIX PRODUCTION NUMBERS TO ITS PRODUCTION AND TO REIMBURSE DEFENDANTS FOR COST5 AND REQUEST FOR A TELEPHONIC CONFERENCE, AND RESPONSE TO PERFECT i0'S OPPOSITION THERETO 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 CASE NO. CV 04-9484 AHM (SHx} Consolidated with Case No. CV 05753 AHM (SHx)]

24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 through 100, inclusive,

26
27 2$
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Defendants.

NOLAN DECLARATION IN SUPPORT OF GOOGLE'S JOINDER IN EX PARTE APPLICATION

Dockets.Justia.com

1 2

I, Thomas Nolan, declare as follows: 1. I am a member of the bar of the State of California and an associate

3 with Quinn Emanuel Urquhart Oliver & Hedges, LLP , counsel for Defendant 4 Gaogle Inc. in this action . I make this declaration of my personal and firsthand 5 knowledge and, if called and sworn as a witness, I could and would competently b testify thereto. 7 2. I submit this declaration in support of Defendant Google Int.'s Joinder

8 in Defendants Amazon . com, Inc, and Alexa Internet ' s Ex Porte Application for an 9 Order Compelling Perfect 10, Inc . to Affix Production Numbers to its Production 10 and to Reimburse Defendants for Costs and Request for a Telephonic Conference, 11 12 and Response to Perfect 10's Opposition Thereto ( filed concurrently herewith). 3. I informed Perfect 10 of Goagle ' s intention to file this Joinder and

13 Response on a ex pane basis via email at 2:24 p.m. on October 30, 2009. 14 4. I have reviewed the Declaration of Jeffrey N. Mausner filed October

15 30, 2009, and the October 22, 2009 letter Mr. Mausner attached thereto as Exhibit 2. 16 In that letter , which Perfect 10 emailed to Google ' s counsel ( including myself) on 17 October 22, Perfect 10 made certain accusations regarding Google ' s alleged 18 discovery conduct. Gaogle currently is in the process of meeting and conferring 19 with Perfect 10 to seek the factual basis for Perfect 10's accusations, sa that Google 20 may investigate and respond to them. 21 5. I am personally copied on the majority of all correspondence between

22 counsel for Google and Perfect 10 regarding discovery disputes in this matter, and 23 am generally informed as to the substance of any such disputes in which I am not 24 personally i nvolved . I have searched the prior meet and confer correspondence 25 between the parties , and to the best of my knowledge, Perfect 10 has never 26 requested to meet-and - confer with Google under Local Rule 37-1 regarding 27 Google ' s Responses and Objections to Perfect 10's Request for Production Nos. 28 342-347.
5 E 320!3180778.2

^, -2_ NOLAN DECLARATION IN SUPPORT OF GOOGLE'S JOINDER IN EX PARTE APFLICATION ^^`^·;^
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1

6.

Following standard litigation practices , it has been Google's practicern

2 ^ this matter to make its electronic document productions in text-searchable format, 3 typically in .TIFF andlor .jpg format (and sometimes in .pdf format}. I am not 4 aware of any instance in which, after receiving a Google electronic document 5 production , Perfect I0 notified Google that there was some technical error in the 6 production such that files produced in fact were not text - searchable . Although in its 7 opposition brief Perfect 10 does not i dentify precisely which documents} it refers to 8 as Google's allegedly non - searchable "DMCA log," the various typewritten 9 spreadsheets Google produced electronically which documented Google ' s response IO to various DMCA notices were indeed produced in text-searchable format. II 7. On October 22, 2009 Perfect 10 produced a hard drive to Google. By

12 email , Perfect 10 informed me that this hard drive contained documents responsive 13 to the Court ' s Order dated October 6 , 2009 compelling production of fnancial and 14 other damages-related documents . I have personaiIy reviewed the hard drive. The 15 hard drive contains a large number of documents spread throughout multiple folders 1f and subfolders. It includes screenshots of search results from several search I7 engines , apparent purported DMCA-related materials , contracts with various third18 parties , and emails , among other things . In my review I came across numerous 19 documents that were not text-searchable . I located no folders of documents labeled 20 "financial documents ," " damages documents ," or with any sort of clear reference to 21 22 23 the Court's Order dated October 6, 2009. 8. On October 21, 2009 , I took the deposition of Perfect 10 employee

Sheena Chou. During that deposition I handed Ms . Chou an exhibit containing

24 documents produced by Perfect 10. Because Perfect 10 did not affix Bates - numbers 2S to those documents when it produced them to Google , those documents did not bear 26 Bates-numbers. 27 9. Attached hereto as Exhibit A is a true and correct copy of an email

28 dated October 25 , 2009 from Jeffrey N. Mausner to myself.
5 3 320!3180778 ,2 -^--.

NOLAN DECLARATION IN SUPPORT OF GOOGLE'S 70INDER IN EX PARTE APPLICATION

1

10.

Attached hereto as Exhibit B is a true and correct copy of a letter dated

2 June 3, 2009 from my colleague Andrea Pallios Roberts to Mr. Mausner. 3 11. Attached hereto as Exhibit C is a true and correct copy of excerpts of

4 the transcript of the September 22, 2009 hearing before the Han. Stephen J. 5 Hillman. 6 12. Attached hereto as Exhibit D is a true and correct copy of excerpts of a

7 "Joint Letter" faxed to the Court by counsel for Perfect 10 on November 14, 2008 8 (Docket Na. 380). 9 13. Attached hereto as Exhibit E is a true and correct copy of excerpts of

10 Perfect 10's Response to Defendants Amazon.com and Alexa Internet's Ex Porte 11 Application to Continue Summary Judgment Filing Deadline, frled on September 12 13 11, 2009 in the consolidated case against the 14mazon defendants. I declare under penalty of perjury under the laws of the United States of

14 America that the foregoing is true and correct. Executed November 2, 2009 at Los 15 Angeles, California. 16 17 18 19 20 21 22 23 24

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Thomas Nolan

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26 27 28
s^sza31 so7^s,z _4_ NOLAN DECLARATION IN SUPPORT OF GOOGLE'S .TOINDER IN EX PARTE APPLICATION ^_

EXHIBIT A

Thomas Nolan
From: Sent : Jeffrey Mausner [[e-mail]] Sunday, October 25, 2009 10:52 AM

To:
Cc: Subject :

Thomas Nolan
Michael T Zeller; Rachel Herrick Kassabian; 'Jansen, Mark T. '; [e-mail]; 'Valerie Kincaid' RE: Sheena Chou documents

Tom: Google misrepresented to the Court that it would be quick and cheap to Bates number Perfect 10's massive electronic productions. Google has never attempted to substantiate that misrepresentation with anything other than testimony by Mike Zeller and Rachel Kassabian, and undisclosed others. As soon as the Court ordered Google to do the Bates numbering, and substantiate its claims with an agreed upon expert, Google quickly came up with another "solution" (the second proposal) that it wishes to unilaterally impose on Perfect J.O. (For example, at the October 21 deposition of Sheena Chou, Google showed the witness documents from Per#ect 10's production, but refused to abide by its own proposal and provide file path information.) Perfect 10 Bates numbered the last production because it consisted of 222 pages in one Adobe document, and was quick and cheap to do so. Since Google is now attempting to substantiate and "revive" its Bates numbering proposal by pointing to Perfect 10's Bates numbering of a #ew hundred pages of documents in a single file, Perfect 10 will not Bates number any other productions until these issues are either resolved by the parties or Judge Hillman. Jeff.

From : Thomas Nolan [mailta:[e-mail]] Sent : Thursday, October Z2, 2Q09 5:06 PM

To: Jeffrey Mausner
Cc: Michael T Zeller; Rachel Herrick Kassabian; 'Jansen, Mark T. '; [e-mail]; Valerie Kincaid Subject : RE: Sheena Chou documents Hi1eff, What program did you use to apply the Bates numbers and confidentiality designations to these documents? Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 16th Floor Los Angeles, Ca 90417 213-443-3885 Direct 213.443.3000 Main Office Number 213.443.3100 FAX thomasnolanCu^guinnemanuel.com www.guinnemanuel.com
NC)TIC:C: The infarination contained in this e-mail massage is intended only for the personal and ronfidential use of the recipient(s) named ahnvr.. This mes:>age may be an aitorney-client communication and]or Lvork product and as such is privileged and confidential, If the reader of this message is not the intended recipient or ar^erit responsible for delivering it to tYse intended recipient, you are hereby r^oiified that you haue received this document in error and that any rev^e^w, disseminaiion, distribution, Or copying of this message is strictly prohibited, if you have received this communication ui error, please notify us immediately by e-mail, and delete the original message.

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..._.._ ...._ . _^.......... t ..... ^ ...... From : Jeffrey Mausner [mailto:jeff@mausnerlaw,com] Sent : Monday, October 19, 2009 11:58 AM

^.._...._ ........_....... _.._.

_-

__...._.._ . _ _...__ ............ .....

To: Rachel I-lerrick Kassabian; Thomas Nalan; Michael T Zeller; Brad R. Love; Andrea P Roberts; [e-mail]; [e-mail]; Timothy Cahn; [e-mail]; Steiner, E[ham F. Cc: Valerie Kincaid Subject : Sheena Chou documents
Attached is the document production in connection with the Sheena Chou deposition. These documents are designated Confidential. Jeff.

This a-mail may be confidential or may contain information which is protected by the attorney-client privilege and work product doctrine, as well as other privileges. 1f you are not the intended recipient of this a-mail, any dissemination or copying of this message is strictly prohibited. Anyone who mistakenly receives this a-mail should notify the sender immediately by telephone or return a-mail and delete it from his or her computer.

Jeffrey N. Mausner Law Offices of Jeffrey N. Mausner Warner Center Towers

21804 Oxnard Street, Suite 910 Woodland Hills , California 91367-3640 Telephone : [phone] Facsimile : [phone]
e-mail : jeff(a),mausnerlaw.com

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EXHIBIT B

uu^nn emanue^ lEial Iaw^rers ^ si^ le o^ ^a^ley
SS$ TwemDolphin Drive, Suile 560, Kedwood Shores, California 94065 ^ gat: (650} SOI-5000 Fax: (650} 841-5100

June 3, 2049 U.S. MAtt, Jeffrey N. Mausner, Esq. ^^ar^ler Centex Towers 21840 Oxnard Street, Suite 910 Woodland Hills, CA Email: Jeff@^lausnerlaw.cazn Re: .

Perfect 14, Sne. v. Google,Tnc.: Document Production

Dear Jeff:

Enclosed are documents bearing control numbers GGL453552-5610. Among other things, Google is supplementing its production with Perfect l4's alleged notices of infringement received since Google's last production, but Google is not re-producing the DVDs Perfect 10 provided with those alleged notices, because Perfect 14 already has copies of those materials.

Very truly yours, G ^^ ^%vtru^r^ 4^" ^^^^Pr^ Andrea Fallios Rakierts
5 13 20245 7603.1

51320x1957603.1

E^H^aET PAGE ^

ExxisiT c

1 1 2 3 9 5
PERFECT 10, INC., UNITED STATES DISTRTCT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

6
PLAINTIFF,

7
VS.

CASE NO. CV 09-9489-AHM{SHX}

8 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25
PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRTPT PRDDUCED 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 91740 {626} 963-0566 HEARING BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE DEFENDANT. GOGGLE, INC., LOS ANGELES, CALIFORNIA SEPTEMBER 22, 2009

{10:02 A.M. TO 11:09 A.M.) {11:21 A.M. TO 12:52 A.M.) {1:35 P.M. TO 2:43 P.M.} (2:52 P.M. TO 3:09 P.M.)

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197 1 2 3 9 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 COPY. THE COURT: OKAY. ORDER. EMAIL STRING I THINK YOU WOULD SEE, YOUR HONOR, THAT WHENEVER THEY WANT TO SHOW SOMETHING TO SOMEBODY, AND IT'S NOT -- IT'S NOT HIGHLY -- YOU KNOW, THAT INVOLVED A CASE WHERE THEY WANTED TO SHOW IT TO THEIR EXPERTS AND PEOPLE WHO WORKED IN THE COMPANY AND SO ON. WE SAID, FINE, DO IT. THEY JUST ASKED US. WITHIN AN HOUR I SAID, FINE, SHOW IT TO THEM. IT'S GOING TO BE EXTREMELY BURDENSOME FOR US TO GO THROUGH AND STAMP EACH DOCUMENT "CONFIDENTIAL" OR "NON-CONFIDENTIAL." IT'S GOING TO BE JUST AS -- YOU KNOW,

MORE BURDENSOME THAN PUTTING A NUMBER ON IT. AND WE JUST CAN'T DO IT. WE CANNOT DO EVERY -THE COURT: ALL RIGHT. LET ME SEE THE PROTECTIVE

I APPRECIATE YOUR BEING HONEST AS TO THE DIFFICULTY. MS. KASSABIAN: I APOLOGIZE, YOUR HONOR. THERE'S A

LITTLE BIT OF HIGHLIGHTING ON THERE, BUT THERE'S NO WRITING OR ANYTHING. THE COURT: OKAY. OH, NEVER MIND. WE HAVE A CLEAN

MS. KASSABIAN:

tPAUSE IN PROCEEDINGS.) MR. MAUSNER: YOUR HONOR, I'D ALSO LIKE TO SHOW

YOUR HONOR WHAT GOOGI,E HAS DESIGNATED AS CONFIDENTIAL -THE COURT: OKAY.

MR. MAUSNER: -- MORE SO THAN EVEN PERFECT 10.

Exw^a^r
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148
1 2 3 4 5 6 7 $ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. KASSABTAN: AND, AGAIN, YOUR HONOR, THAT

OBVIOUSLY HAS NOTHING TO DO WITH WHY WE'RE HERE TODAY. AND' TF PERFECT 10 HAS A PROBLEM WITH GOOGLE'S DESIGNATIONS, THEY CAN MEET AND CONFER WITH US AND FILE A MOTION, AND WE'LL DEAL WITH THAT IN DUE COURSE. MR. MAUSNER: WELL, WE CAN'T DO THAT. WE CAN'T --

WE CAN'T DO AS MANY MOTIONS AND AS MANY LETTERS AND EMAILS AS GOGGLE DOES TO US OBVIOUSLY. THE COURT: TS THE PROBLEM REALLY WITH THE CONFIDENTIALITY DESIGNATION OR WITH LOCAL RULE 79--3 SEALING. WHERE'S THE PROBLEM? MS. KASSABTAN: CERTAINLY SEALING IS ONE OF THE

BIGGEST RESULTING PROBLEMS WITH PERFECT 10'S OVER-DESIGNATION. AND WE CITED IN OUR BRIEFING, YOUR HONOR,

THE ULLICO CASE. I'M NOT SURE IF I'M PRONOUNCING THAT RIGHT. THE COURT: YES. I KNOW. U-L-L-I-C-O.

MS. KASSABTAN:

WE HAVE A VERY SIMILAR SITUATION HERE. WHEN A PARTY OVER-DESIGNATES, EVERY TIME WE WANT TO FILE A DOCUMENT WITH THE COURT, EVERY TIME WE WANT TO SHOW A DOCUMENT AT A DEPOSITION, EVERY TIME WE WANT TO REVIEW A DOCUMENT FOR WORK-PRODUCT PURPOSES AND POSSIBLY SHOW IT TO OTHERS, WE WOULD HAVE TO PICK UP THE PHONE AND CALL PERFECT 10 AND ASK THEM IF IT'S OKAY. THAT IS NOT HOW THE PROTECTIVE ORDER WORKS. NOR

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183 1 2 3 4 5 6 7 s 9 10 11 ^. 2 ]. 3 14 1.5 16 17 18 1.9 20 21 22 23 24 25
FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN DATED DOROTHY BABYKIN I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE

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EXHIBIT D

11/14/ 2008 15:44

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N u RNEAN ZADA

Case 2:04-cv^09484-AHM-SH

Document 380

Filed 11/14/2008

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air ly

LA'W' QFF^CES OF JEFFREY N. NIAUSNER

Warier Centex Towers ' 21800 Oxnard Street, Suite 910 Waodlasad Hills, California 91367 Telephone {818} 992-7500 Facsimile {$1 S) 716-2773
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November 14, 2008
The Honorable Stephen J. Hillman Ck^ief United States Magistrate judge

CLERK , U.S. G':°:-`?:CT COUHY ,

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ENTRAL D^SI' filCj OF CAL4FS?RMIA y pFpUTY

Re: 1°er e Croo CV07-SI ^6 AH Py Fax to (2,^3) 894-438.I
Dear Judge Hillman:

CV 0494$4 AHM (SHE),

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Per tie i;nstructxQns provided by your clerk, this is a Joint Letter regarding Perfect 10's request that this Court; (1) Order Go not to file any additionai motions to conxpeX until aŁtc^r December 8, 2 OS (the hearing date for the motion for summary judgment in the Amazon/Alexa case), and that Google defer the aExleet and confer process regarding discovery issues until aŁker December $, (2} Order that Google emit its discoveryy after Dece^ $, 2008 to those issues pertaining to the sum3mary judgrnezat tx^otion. Google has said it is filing shortly, and that any future discovery be done at a reasonable pace. PERFECT 10'S PQ$ITION Pez1"ect 10 and Amazon subsidiary .^9.com just completed A4's motion for summary judgment. The hearing an Perfect 10's surnlnary judgment motion against Amazon and its subsidiary Ale^a is December $, 200$. On November 7, Google advised Perfect 3.0 that it is going to be f ling a motion for summary judgment in the near future. Since the October 6 status conf'erer^ee, the Defendants, particularly Google, have been subjecting Perfect XO to a ceaseless barrage of e-mails and letters regarding discovery, mast of it having nothing to do with issues that Judge Matr was canccrned with at the October 6 hearing. It is obvious that Google is doing this to cnlsh Perfect 10 and make it impossible #'or
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11/14!2008 15.44

3162059644

NORMAN ZADA

PAGE

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Case 2:04^cv-09484-AHM^SH

Document 380

Filed 11!1412008

Page 7 of 18

claimed it needed to rneet and confer about, and which is the subject of nurr^crous thxeats to f le yet another ulvtzon to compel. Google and its counsel, Quinn Emanuel, are out of control and Perfect 10 asks this Court to reign in their attempts to crush a smaller litigant.

G4UGl^>^'S PUSYTY^N
I. ^'erfect IQ's Informal Request far a Discovery Stay Is Procedurally Inap^roper.

In its portions of this "Joint Letter," Perfect 10 asks the Magistrate Judge to stay Google's discovery sv that Perfect 10 purportedly can devote itsElf to preparing a single reply bziEf in support of its own motion for summary judgment against Alexa and Amazon in the Amazon case. Even apart firam its lack of merit { as discussed below), Perfect 10`s xequest is procedurally improper. The power to manage the case schedule rests with the District Judge. Zt is not one of the powers delegated to Magistrate Budges under Rule 72(a}, and the reference to the 1VCagistrate 3udge in this case was for discovery matters only. See Docket loo. 20. If Perfect ],0 belie^+es a stay of the case is waxxanted, Perfect 10 is required to satisfy the pre-filing reyuirexmebts of Local Rule 7-^ and then fle a noticed motion with Judge Matz to rxxodXfy the case schedule. Having failed to satisfy the pre-filing requirements ar to bring such a properly noticed motion (or even an applicatiozt for ^x parte relxefj, Perfect x 0's request should be rejected . See Fed ._R, Civ. ^ 16(b)(4) ("A schedule maybe rr^.odifyed only for good cause and with the judge's consent."); Zzvkovic v. Southexn Calif. Edison Co., 302 F.3d 10$0, lOS7-S$ (9th Cir. 2002). Because a stay xequest can only be zzxade to the District Judge and because Perfect 10 has failed to properly meet and confer ax otherwise meet the requirements for motion practice under Local Rule 7w3, its quest should be rejected on those T grounds alone, ^. Jntlge Matz Has Already Re^eeted Perfect X4's Stay Request

Evem if Perfect 10 had followed the Rules, its request lacks zx^erit because Judge Matz has already declined to stay discovery in, this case . Contrary to 1'exfect 10's suggestions, Judge Matz made clear at the 4ctvber 6, 2008 Status Conference that

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11!14/ 2008 15:44

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Case 2 :04-cv-09484-AHM-SH

Document 380

Filed 19/14/2008

Page 18 of 18 .

Sincerely, LAW OFFICES OF JEFFREY N. kVi,AU5NE^ Te^frey N. Niausner By:
Jef^z^ey N. Mausner, attaz^^ys for Perfect 10

QUINN EMANUEL URQT_TkIART OL^VER & T^EAGES, LLF Michael '^'. Zellers with perrnissifln

By:
Michael 'l.'. Zeller, attorneys for C^oogle

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EXHIBIT E

2:05-cv-04753- AHM-SH

Document 348

Filed 091'1112009

Page ^ of 9

1 2 3 4 5 6 7 8 9 10 II I2 13

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 E-Mail: [e-mail] Telephone: (310} 617-8100, (818} 992-7500 Facsimile : (818} 7I6-2773 Attorneys for Plaintiff Perfect 10, Inc.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CASE NO. CV OS-4753 AHM {SHx) Consolidated with Case No. CV 04-9484 AHM {SHx) PERFECT 10 ' S RESPONSE TO DEFENDANTS AMAZON.COM AND ALEXA INTERNET'S EX PARTE APPLICATION TO CONTINUE SUMMARY JUDGMENT FILING DEADLINE

PERFECT 10, INC ., a California corporation,

Plaintiff,
v. AMAZON.COM, INC., et al.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants.

AND CONSOLIDATED CASE.

BEFORE JUDGE A. HOWARD MATZ
Date: Ex Parte Opposition Time: Ex Parte Opposition 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

Perfect ] 0's Response to Defendants Amazon . com and Alexa Internet's Ex Parte Application to Continue Summary Judgme^^^^i^I^eadline

PACE

2:05-cv-04753-AHM-SH

Document 348

died 09/11/2009

Page 7 of 9

1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20

190, pages 3, 9-10, 12, 19-21. Moreover, it was Amazon that contracted with Google to provide search results between January 2003 and September 2006. See Exhibits I and J to the pleading entitled Exhibits B, I, J and K to the Declaration of Jeffrey N. Mausner in Support of Perfect Y0, Inc.'s Portions of the Joint Stipulation Re: Defendant A9.com, Inc.'s Motion for Protective Order on Behalf of Jonathan Leblang, filed under seal pursuant to protective order on August 5, 2009 (Docket No. 341). Because of Amazon's direct involvement in the infringement of Perfect 10's copyrighted works , along with its ongoing refusal to act, Amazon does not have a good faith basis for filing a motion for summary judgment absolving it of any copyright liability . See emails between Perfect 10's and Amazon's attorneys , attached as Exhibit C to the Declaration of Timothy R. Cahn in Support of Defendants Amazon.com, Inc. and Alexa Internet's Ex Porte Application to Continue Summary Judgment Filing Deadline , pages 14-15. V. ^F THE COURT CANNOT RULE ON PERFECT 10'S SUMMARY JUDGMENT MOTYON YN THE NEAR FUTURE, -_ A T,,THE COURT STAY ALL

DYSCOVERY YN BOTH CASES. Perfect 10 believes that a ruling on Perfect 10's Summary Judgment Motion will lead to settlement. Until that ruling is made, Perfect 10 is losing approximately $3 million a year, battling a situation in which both Google and the Amazon defendants are making available for free everything that Perfect 10 sells. Moreover , Defendants are refusing to process Perfect 10's DMCA notices . If the Court cannot rule on Perfect 10's Summary Judgment Motion soon, Perfect IO proposes the following: That Defendants' request to extend the summary judgment deadline be
6 Perfect 10 ' s Response to Defendants Amazon.com and Alexa Internet's Ex Porte Application to Continue Summary .ludgme^y;^})^^g deadline

21
22 23 24 25 26 27 28

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2:05-cv-04753-AHM-SH

Dacumer^# 348

Filed 09/11/2009

Page 8 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S lb 17 18 19

granted, but that the Court also stay the massive discovery that currently is taking place until it rules an Perfect 10's Summary Judgment Motion. For example, in the next two weeks, Ferfect 10 must defend at least four days of deposition, prepare extensive responses to new written discovery, and prepare for the September 22, 2009 hearing on discovery motions before Judge Hillman. All of this massive discovery ultimately may be mooted by the Court's ruling on Perfect 10's Summary Judgment Motion or by settlement. Under these circumstances, it makes little sense to waste legal and judicial resources addressing such discovery until the Court issues its ruling. Therefore, if the Court does not intend to rule shortly on Perfect 10's Summary Judgment Motion, Perfect 10 requests that the Court couple the extension of the summary judgment deadline with the stay of discovery requested by Perfect 10.' VI. CONCLUSION. Under the assumption that the Court will make its ruling on Perfect 10's Summary Judgment Motion against Alexa and Amazon by the end of the summer, Perfect 10 opposes the Application because the extension of the deadline for filing summary judgment motions sought by Defendants will delay the resolution of the case. This delay will extend the damage that Perfect 10 is continuing to suffer, because defendants are simply disregarding Perfect 10's DMCA notices. Zada Decl. ¶¶3-9, Exhs. 1-3. Defendants' Application is contrary to the Court's July 9, 2009 Order, and is unnecessary. For these reasons, and for the additional reasons .

zo
21 22

23
24 I Perfect 10 disag^rees with a number of the statements made in Amazon's g papers , including re arding the extent of production b Perfect 10 and what occurred at the telephone conference before Judge Hillman. Timothy Cahn is a recent addition to Amazon ' s team and is likely not familiar with the massive discovery productions that Perfect 10 has made in this case , particularly those which included Perfect 10's tax returns , financial statements, work for hire agreements , copyright registration certificates , and deposit materials.
Perfect 1Q's Response to Defendants Amazon.com and Alexa Internet's Ex Porte Application to Continue Summary Judgmen^^^4r^g17eadline ^^ ^^^^

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2:05-c^-04753-AHM-SH

Document 348

Filed 09/11/2009

Page 9 afi 9

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discussed above, Perfect 10 respectfully requests that the Court deny Defendants' Ex Porte Application. However, if the Court does not rule on Perfect 10's Summary Judgment Motion in the near future , Perfect 10 requests that the Court stay all discovery^in both the Amazon and Google cases , including the determination of any pending discovery motions before Judge Hillman, until such time as the Court rules on Perfect 10's Motion . Perfect 10 also agrees, in that circumstance, that Defendant's contemplated summary j udgment motions be postponed until after the Court rules on Perfect 10's Summary 3udgment Motion . Perfect 10 also requests that in that circumstance , the parties then be given a month after that ruling is made to settle the cases.

Dated : September 11, 2009

Respectfully submitted,
LAW OFFICES OF JEFFREY N. MAUSNER

By:

,^ef^rey ^V: ^VLaurner ,, ..,_._,_-Jeffrey N. Mausner Attorneys for Plaintiff Perfect 10, Inc.

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1?erfect I0's Response to Defendants Amazon.com and Alexa Internet's Ex Porte Application to Continue Summary Judgment ^^i^ dline

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