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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[Proposed] Order Granting the Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, v. Case No. CV04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) Before Judge A. Howard Matz

GOOGLE, INC., a corporation,

[PROPOSED] ORDER GRANTING THE MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER Defendant. SANCTIONS AGAINST ________________________________ DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER AND CONSOLIDATED CASE. 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

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Plaintiff Perfect 10, Inc.'s Motion For Evidentiary and Other Sanctions Against Defendant Google, Inc. and/or for the Appointment of a Special Master has been presented to the Court for decision. Having considered the written arguments of the parties, the supporting evidence, and having heard the oral arguments of counsel for the parties, and finding good cause therefore, Perfect 10's Motion is GRANTED. The Court hereby imposes the following sanctions against Defendant Google, Inc.: 1. 2. 3. Google is ineligible for the safe harbor provisions of the Digital Google's three pending summary judgment motions, filed in this Google is hereby ordered to produce the documents which it has Millennium Copyright Act (the "DMCA") set forth in 17 U.S.C. §512; action on July 2, 2009 (the "Summary Judgment Motions"), are denied; failed to produce, as set forth in Perfect 10's Memorandum of Points and Authorities, within 10 days of this Order. These documents include 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. This Order is made on the grounds that Google has violated Court Orders by concealing and suppressing documents it was obligated to produce to 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 grants the Motion and imposes 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
1 [Proposed] Order Granting the 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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response to abusive litigation practices. ALTERNATIVE ORDER: This Court appoints _________________ as a Special Master to investigate the issues raised by Perfect 10's Motion for Evidentiary and Other Sanctions Against Google, and Google's three pending Summary Judgment Motions. The Special Master is to 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 is to report back to the Court within two months of this Order. This Order is made pursuant to Federal Rule of Civil Procedure 53(a)(1)(C). IT IS SO ORDERED. Dated: _______________ Honorable A. Howard Matz United States District Judge

2 [Proposed] Order Granting the Motion of Plaintiff Perfect 10, Inc. for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master