Perfect 10 Inc v. Google Inc et al

Filing 600

SUPPLEMENT to 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 Product #596 Google Inc.'s Supplemental Memorandum in Support of its Joinder in Defendants Amazon.com, Inc. and Alexa Internet's Ex Parte Application and Response to Perfect 10, Inc.'s Opposition Thereto filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Supplemental Declaration of Thomas Nolan in Support Thereof, and Exhibits Thereto)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 600

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)] DISCOVERY MATTER GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN DEFENDANTS AMAZON.COM, INC. AND ALEXA INTERNET'S EX PARTE APPLICATION AND RESPONSE TO PERFECT 10'S OPPOSITION THERETO [Supplemental Declaration of Thomas Nolan filed concurrently herewith] Hon. Stephen J. Hillman Date: Nove mber 3, 2009 Time: 10:00 A.M. Crtrm.: 550 Discovery Cutoff: None Set Pretrial Conference Date: 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
01980.51320/3187801.3

Defendants.

GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN THE AMAZON DEFENDANTS' EX PARTE APPLICATION Dockets.Justia.com

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As Defendants have shown, although Perfect 10's October 22, 2009

2 production was purportedly in response to the Court's October 6, 2009 Order 3 Compelling Documents (Docket No. 560), the documents in that production were 4 spread over a variety of folders and subfolders, were not produced as kept in the 5 ordinary course of business, and were not labeled in a manner that identified which 6 documents were being produced in response to the October 6 Order.1 Google 7 submits this supplemental brief to further explain the deficiencies in Perfect 10's 8 recent and past productions, and to request that the Court adopt the Defendants' 9 (Proposed) Order granting the Amazon Ex Parte Application (and Google's Joinder 10 Therein). 11 I. 12 13 14 15 PERFECT 10 SHOULD BE ORDERED TO IDENTIFY THE LOWESTLEVEL SUB-FOLDER IN WHICH RESPONSIVE DOCUMENTS MAY BE FOUND. A. Perfect 10's October 22, 2009 Hard Drive Production As previously explained, the 18.2 Gigabyte hard drive Perfect 10 produced on

16 October 22, 2009 gives Defendants and the Court no meaningful way to evaluate 17 Perfect 10's compliance with the October 6, 2009 Order. The documents in that 18 production are spread over sixteen separate first-level folders, most of which contain 19 numerous sub-folders and sub-sub-folders, and none of which is labeled with any 20 clear connection to the October 6 Order, or the 27 Requests for Production that were 21 compelled therein. See Declaration of Thomas Nolan in Support of Google's 22 Joinder in the Amazon Ex Parte Application (Docket No. 596-2) at ¶ 7. To provide 23 further detail, the folder titled "google" contains 1,070 separate sub-folders and 24 25 See Amazon and Alexa Internet's Ex Parte Application for an Order 26 Compelling Perfect 10, Inc. to Affix Production Numbers to its Production and to 27 Reimburse Defendants for Costs and Request for a Telephonic Conference (the "Amazon Ex Parte") at 3; Google's Joinder therein ("Google Joinder") at 3-4. 28
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GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN THE AMAZON DEFENDANTS' EX PARTE APPLICATION

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1 8,307 separate files, and the folder titled "usenet" contains a total of 27,342 files. 2 Supplemental Declaration of Thomas Nolan ("Supp. Nolan Decl.") filed 3 concurrently herewith, at Ex. A (screenshot showing the "usenet" folder's 4 properties) and Ex. B (screenshot showing the "google" folder's properties). Many 5 of the files on this hard drive are not text-searchable, and must be reviewed 6 manually, one file at a time. Supp. Nolan Decl. ¶ 3. And if responsive documents 7 are buried within multiple layers of subfolders, Defendants may never find them. 8 This is why Perfect 10 needs to identify the lowest-level subfolder in which 9 documents responsive to the October 6 Order may be found. 10 The hard drive also contains voluminous materials that appear to have little (if 11 any) relevance to the October 6 Order (or this case, for that matter), making the task 12 of locating responsive documents all the more difficult. See id. at ¶ 3. For example, 13 within the hard drive's "whois" folder (which itself contains 36 separate subfolders) 14 is a 1,429 page .pdf file containing what appears to be the U.S. Copyright Office's 15 entire directory of agents designated by service providers to receive notifications of 16 claimed infringement pursuant to Section 512(c) of the Copyright Act. Id. These 17 are just examples of why Perfect 10's productions are so voluminous and difficult to 18 review. 19 Moreover, the file structure confirms that Perfect 10 did not produce these 20 documents as it maintains them in the ordinary course of business. For example, the 21 October 22 hard drive contains an entire folder entitled "articles after production" 22 (presumably a reference to Perfect 10's last document production to Google), which 23 contains various recent newspaper articles and similar documents. Id. at ¶ 3. 24 Plainly, these are not documents created or maintained by Perfect 10 in the ordinary 25 course of its adult entertainment business. These are litigation documents collected 26 from the Internet after Perfect 10's last document production, gathered for the 27 purpose of producing them to Google. Because Perfect 10 did not produce its 28 responsive documents as they are kept in the ordinary course of business, but rather,
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GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN THE AMAZON DEFENDANTS' EX PARTE APPLICATION

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1 produced them in myriad folders, sub-folders and sub-subfolders intermingled with 2 other voluminous non-responsive documents, Perfect 10 should be ordered to 3 provide Defendants with a declaration identifying the lowest-level subfolder in 4 which documents responsive to the October 6 Order may be found. 5 6 B. Prior Perfect 10 Productions Perfect 10 has represented that its prior document productions contain certain

7 unidentified documents that are also responsive to certain unidentified Requests 8 compelled by the October 6 Order. Perfect 10 should be ordered to identify the 9 location of these documents as well, by lowest-level subfolder, because these prior 10 productions are organized in a fashion similar to the October 22 production. For 11 example, Perfect 10's November 25, 2008 document production contains 49 12 separate first-level folders. Supp. Nolan Decl. ¶ 6. For the Court's reference, 13 attached is a screenshot of these 49 first-level folders. Id. at Ex. C. As the 14 screenshot shows, none of these folders has any reference to any of Google's 15 Requests for Production (or the subject matter of those requests). Id. at ¶ 6 & Ex. C. 16 And most of these first-level subfolders have a large number of subfolders--for 17 example, the folder "0 0 0 for next production" alone contains 302 separate 18 subfolders and 12,152 separate files. Id. at Ex. D. As with the October 22 hard 19 drive, many files on this drive are not text-searchable, and must be reviewed 20 manually, one file at a time. Id. at ¶ 3. Again, if a responsive document was buried 21 many layers deep in one of the hundreds or thousands of subfolders, Defendants 22 might never find it. Further, as the title of this particular folder makes clear ("0 0 0 23 for next production"), these are documents Perfect 10 compiled purely for purposes 24 of a litigation-related document production, and are not documents kept in the 25 ordinary course of business. See id. at Exs. C & D. 26 27 28
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GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN THE AMAZON DEFENDANTS' EX PARTE APPLICATION

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1 II. 2

CONCLUSION For the foregoing reasons, Google requests that the Court adopt the

3 Defendants' (Proposed) Order granting the Amazon Ex Parte Application (and 4 Google's Joinder Therein). 5 6 DATED: November 6, 2009 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.

GOOGLE INC.'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN THE AMAZON DEFENDANTS' EX PARTE APPLICATION

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