Perfect 10 Inc v. Google Inc et al

Filing 617

NOTICE OF MOTION AND MOTION for Sanctions Against DEFENDANT GOOGLE, INC. - NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER filed by Plaintiff Perfect 10 Inc. Motion set for hearing on 12/21/2009 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Proposed Order)(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 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff Perfect 10, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE, INC., a corporation, Defendant. ________________________________ AND CONSOLIDATED CASE. Case No. CV04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) Before Judge A. Howard Matz NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER [Memorandum Of Points and Authorities and Declarations of Dr. Norman Zada, Jeffrey N. Mausner, and Sheena Chou In Support Thereof and [Proposed] Order Filed Concurrently Herewith] Date: December 21, 2009 Time: 10:00 a.m. 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
Notice of Motion and Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master

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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 21, 2009 at 10:00 a.m., or as soon thereafter as the matter may be heard, in the Courtroom of the Honorable A. Howard Matz, Courtroom 14 of United States District Court for the Central District of California, located at 312 North Spring Street, Los Angeles, California, Plaintiff Perfect 10, Inc. ("Perfect 10") will and hereby does move this Court for an Order imposing evidentiary and other sanctions against Defendant Google Inc. ("Google"), as set forth in the Memorandum of Points and Authorities In Support of Plaintiff Perfect 10, Inc.'s Motion For Evidentiary and Other Sanctions Against Defendant Google, Inc. and/or for the Appointment of a Special Master, filed separately herewith (the "Memorandum of Points and Authorities"). The sanctions that Perfect 10 seeks against Google include, but are not limited to, the following: 1. That Google be found ineligible for the safe harbor provisions of the Digital Millennium Copyright Act (the "DMCA") set forth in 17 U.S.C. §512; 2. That Google's three pending summary judgment motions, filed in this action on July 2, 2009 (the "Summary Judgment Motions"), be denied or dismissed; 3. That Google be compelled to produce the documents which it has failed to produce, as set forth in the Memorandum of Points and Authorities, within 10 days after this Court rules on this Motion. These documents include, but are not limited to, the following: (a) the "spreadsheet-type" DMCA log "summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response," which Google has failed to produce in violation of this Court's May 13, 2008 Order and earlier orders of Magistrate Judge Hillman; (b) the DMCA notices and other documents that Google has failed to produce in violation of the Court's orders and Google's representations that such documents have been produced. Perfect 10 should then be given an opportunity to file a sur-reply in connection with the Summary Judgment Motions and seek monetary sanctions before this Court rules on those motions;
Notice of Motion and Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master

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4. Other sanctions that the Court deems appropriate. This Motion is made on the grounds that Google has committed multiple violations of Court Orders by concealing and suppressing documents it was obligated to produce to Perfect 10. Google has obstructed discovery and deceived the Court and Perfect 10. Google's improper conduct has adversely affected Perfect 10's ability to litigate the case, and prevented Perfect 10 from being able to fully and fairly oppose the Summary Judgment Motions. Accordingly, this Court should grant the Motion and impose the sanctions sought by Perfect 10, both under Federal Rule of Civil Procedure 37 and under this Court's inherent power to impose sanctions in response to abusive litigation practices. PLEASE TAKE FURTHER NOTICE that, if this Court does not impose the evidentiary and other sanctions sought by Perfect 10, Perfect 10 moves this Court, under Federal Rule of Civil Procedure 53, for the appointment of a Special Master to investigate the issues raised by this Motion and/or Google's Summary Judgment Motions. The Special Master would investigate such issues as: (i) Google's alleged failure to comply with Court-ordered discovery; (ii) the impact of Google's conduct upon the Summary Judgment Motions; (iii) whether Google has complied with 17 U.S.C. §512(i), the repeat infringer provision of the DMCA; and (iv) if Google is determined to have complied with §512(i), whether Google has appropriately and timely responded to each of Perfect 10's DMCA notices. The Special Master would then report back to the Court. This Motion is made on the grounds set forth in Federal Rule of Civil Procedure 53(a)(1)(C). Requiring this Court to determine the numerous issues raised by this Motion and Google's Summary Judgment Motions may impose a substantial burden upon the Court at this time. In order to rule upon this Motion and the Summary Judgment Motions, this Court will need to address such issues as whether Google has violated Court Orders concerning discovery, the impact of Google's alleged violations on Perfect 10's ability to fairly litigate this case,
1 Notice of Motion and Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master

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whether Google has suitably implemented a policy against repeat infringers, and, if so, whether Google has appropriately and timely responded to each of Perfect 10's DMCA notices. This Court may not be able to effectively and timely address the issues raised by this Motion and the Summary Judgment Motions, since the Court still needs to rule on Perfect 10's Motion for Partial Summary Judgment Against Defendants Alexa Internet, Inc. and Amazon.com, Inc., filed on October 13, 2008 in Perfect 10 v. Amazon.com, Inc., the case consolidated with this action. (See Docket Nos. 172-185, 189-191, 210-217, 230-244, and 248-264 in the Amazon case.) Accordingly, if the Court believes that it cannot effectively and timely address the issues raised by the Motion and Google's Summary Judgment Motions at this time, it is appropriate and necessary under Federal Rule of Civil Procedure 53 for this Court to appoint a Special Master to address these issues. This Motion is based upon this Notice of Motion, the Memorandum of Points and Authorities, and the Declarations of Dr. Norman Zada, Jeffrey N. Mausner, and Sheena Chou in support of the Motion, submitted separately herewith, the complete files and records in this action, all matters of which this Court properly may take judicial notice, and any additional matters that may be submitted to the Court at or before any hearing on the Motion, including in any reply papers. Statement of Compliance with Local Rule 7-3 This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place starting on October 22, 2009. The parties exchanged extensive correspondence regarding the issues raised in this Motion, which is attached as Exhibit O to the Declaration of Jeffrey N. Mausner. Dated: November 29, 2009 LAW OFFICES OF JEFFREY N. MAUSNER

Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.
2 Notice of Motion and Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master