Perfect 10 Inc v. Google Inc et al

Filing 603

RESPONSE IN SUPPORT of 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 Response to Perfect 10's Memorandum in Support of its Proposed Order Regarding the Identification of Certain Documents and Reply to Google's Supplemental Memorandum in Support of its Joinder in Defendants Amazon.com, Inc. and Alexa Internet's Ex Parte Application filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 603

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 RESPONSE TO PERFECT 10'S MEMORANDUM IN SUPPORT OF ITS PROPOSED ORDER REGARDING THE IDENTIFICATION OF CERTAIN DOCUMENTS AND REPLY TO GOOGLE'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF ITS JOINDER IN DEFENDANTS AMAZON.COM, INC. AND ALEXA INTERNET'S EX PARTE APPLICATION 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
01980.51320/3194556.3

Defendants.

GOOGLE INC.'S RESPONSE TO PERFECT 10'S MEMORANDUM IN SUPPORT OF ITS PROPOSED ORDER RE: EX PARTE APPLICATION Dockets.Justia.com

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In its 19-page "Memorandum" (Docket No. 602), Perfect 10 again has

2 disregarded the Court's admonition not to raise extraneous issues. The 3 Memorandum also seeks to re-argue issues P10 already lost at the September 22, 4 2009 hearing on Google's motion to compel, and is filled with false claims and 5 accusations directed at Google and its counsel (and the Amazon Defendants). 6 Google will not separately address each of these false claims here, but will respond 7 to them if and when P10 raises them in a proper forum. The Court should disregard 8 those portions of P10's Memorandum in their entirety.1 9 As for the portions that address the pending issues, P10 inconsistently asserts 10 that (1) P10's production is "highly organized," such that Defendants "may readily 11 find any documents they want," and yet somehow (2) it would take P10 "years" to 12 find those documents itself, if Defendants' Proposed Order was adopted. Both 13 statements cannot be true. As P10's Memorandum demonstrates, P10 knows 14 precisely where the responsive documents are, and should be ordered to share that 15 information with Defendants. P10's proposal that it only should be ordered to 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3194556.3

P10's new argument that, in response to Amazon's Ex Parte motion directed to P10's discovery failures, Google should be ordered to identify each and every single page of documents Google produced in response to three separate Court Orders (one of which dates back to 2006), should be rejected out of hand. First, as discussed above, Google's production is entirely irrelevant to the pending motion. As the Court has already instructed P10, if P10 takes issue with Google's productions, it may bring that dispute to Google's attention in a conference of counsel (which P10 has not done) and, if necessary, to the Court's attention by filing a motion. Again, P10 may not disregard this Court's Local Rules requiring meetand-confer before motion practice. See Local Rule 37-4. Second, P10 has not suggested (much less demonstrated) that it was unable to locate responsive documents in Google's production, so the order P10 seeks appears unnecessary. Third, imposing Perfect 10's Proposed Order would not be "mutual" since P10 has refused to Bates stamp its production. To be mutual, P10 would first have to Bates stamp its entire production and then submit to an order like the one it proposes for Google (P10 Memo. at 15) which P10 has not agreed to do.
GOOGLE INC.'S RESPONSE TO PERFECT 10'S MEMORANDUM IN SUPPORT OF ITS PROPOSED ORDER RE: EX PARTE APPLICATION

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1 provide the location of documents responsive to some (but not all) of the Ordered 2 Requests is both baseless and arbitrary. So too is P10's insistence that even as to 3 those Requests, it need identify them only by "first subfolder level." An example 4 demonstrates why. If top-level folder X contains two subfolders (A & B), and those 5 two subfolders each contain four more sub-subfolders each (A:(D, E, F & G); B:(H, 6 I, J & K)), yet responsive documents may only be found in sub-sub-folder K, then 7 P10 must point to folder sub-subfolder K; identifying only sub-folder B would send 8 Defendants on a wild goose chase through sub-folders H, I & J. As for P10's claims 9 of burden, if P10 is correct that "Perfect 10's financial documents [produced as a 10 single PDF file on October 16, 2009] are the primary source of documents 11 responsive to virtually all of Google's recent requests" (P10 Memo. at 11), this task 12 will be far easier than P10 lets on. 13 Finally, Perfect 10's suggestion that an "outside expert" must be appointed 14 before the Court can issue this basic discovery order is another attempt to distract 15 and delay. This Court is more than capable of evaluating the parties' submissions 16 and deciding that P10 should be ordered to (1) identify what it produced in response 17 to the October 6, 2009 Order so that all parties have all responsive documents in 18 hand prior to the Hersh deposition and (2) Bates stamp its future production for the 19 Hersh deposition. P10 had its opportunity to brief and argue these two issues, and it 20 lost. There is no need for expert advice. Appointing such an expert will only serve 21 to further delay any discovery progress in this case. 22 23 DATED: November 9, 2009 24 25 26 27 28
01980.51320/3194556.3

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE INC.'S RESPONSE TO PERFECT 10'S MEMORANDUM IN SUPPORT OF ITS PROPOSED ORDER RE: EX PARTE APPLICATION

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