Perfect 10 Inc v. Google Inc et al

Filing 631

TRANSCRIPT for proceedings held on 9/14/09 3:00pm. Court Reporter/Electronic Court Recorder: Babykin Courthouse Services, phone number [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/23/2009. Redacted Transcript Deadline set for 1/2/2010. Release of Transcript Restriction set for 3/2/2010. (Lopez, Margarita)

Perfect 10 Inc v. Google Inc et al

Doc. 631

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED; COURT SMART SANDRA L. BUTLER DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA [phone] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PERFECT 10, INC.,

) ) PLAINTIFF, ) ) VS. ) ) ) GOOGLE, INC., ET AL., ) ) ) DEFENDANTS. ) ______________________________)

CASE NO. CV 04-9484-AHM(SH) CV 05-4753-AHM(SH) LOS ANGELES, CALIFORNIA SEPTEMBER 14, 2009

TELEPHONIC HEARING BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

91740

Dockets.Justia.com

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APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER VALERIE KINCAID ATTORNEYS AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CALIFORNIA 91367 FOR GOOGLE: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER TOM NOLAN ATTORNEYS AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 TOWNSEND TOWNSEND & CREW BY: MARK JANSEN TIMOTHY CAHN ATTORNEYS AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CALIFORNIA

FOR AMAZON.COM, ALEXA INTERNET:

94111

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INDE CASE NO. CV 04-9484-AHM(SH) CV 05-4753-AHM(SH) PROCEEDINGS:

X

SEPTEMBER 14, 2009

TELEPHONIC CONFERENCE

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LOS ANGELES, CALIFORNIA; MONDAY, SEPTEMBER 14, 2009;3:00P.M. THE CLERK: TODAY IS MONDAY, SEPTEMBER THE 14TH.

IT'S A TELEPHONIC HEARING REGARDING CASE NUMBER CV 04-9484-AHM(SH), PERFECT 10 VERSUS GOOGLE CONSOLIDATED WITH CASE NUMBER CV 05-4753, PERFECT 10 VERSUS AMAZON.COM, A9.COM. COUNSEL, PLEASE ENTER YOUR APPEARANCE. THIS IS TAKING PLACE AT 3:00 P.M. ON SEPTEMBER 14TH IN MAGISTRATE JUDGE HILLMAN'S CHAMBERS. THE COURT: HI. GOOD AFTERNOON, YOUR HONOR.

MR. MAUSNER: THE COURT:

COULD YOU SPEAK UP, MR. MAUSNER. IS THAT BETTER, YOUR HONOR?

MR. MAUSNER: THE COURT:

YES, THANK YOU.

WHO ELSE IS PRESENT? MR. ZELLER: FOR GOOGLE. MR. CAHN: THE COURT: AND TIM CAHN AND MARK JANSEN FOR AMAZON. OKAY. VALERIE KINCAID AND JEFF MAUSNER FOR WE ALSO HAVE MIKE ZELLER AND TOM NOLAN

MR. MAUSNER: PERFECT 10. THE COURT:

OKAY.

I DID -- I DID SEE THAT THERE

WAS THIS EX PARTE APPLICATION AND PERFECT 10'S OPPOSITION REGARDING THE AMAZON DEADLINES. I HAVEN'T BOTHERED TO -- I

HAVEN'T HAD A CHANCE TO SEE IF JUDGE MATZ HAS RULED ON THAT,

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BUT I WOULD KIND OF DOUBT IT. MR. MAUSNER: THE COURT: HE HAS ACTUALLY, YOUR HONOR.

OKAY. WOULD YOU LIKE ME TO STATE WHAT THE

MR. MAUSNER: RULING WAS? THE COURT: QUICKLY. MR. MAUSNER:

SURE.

I CAN LOOK IT UP, BUT TELL ME

HE GRANTED AMAZON'S EX PARTE AND, IN

FACT, COMPLETELY VACATED THE SUMMARY JUDGMENT CUTOFF. THE COURT: OKAY. SO, YOU KNOW, IT'S OUR POSITION THAT

MR. MAUSNER:

THERE'S NO REASON TO HAVE ANY OR MOST OF THE DISCOVERY DISPUTES HEARD AT THIS TIME. THE COURT: MR. CAHN: CAHN FOR AMAZON. THE COURT: MR. CAHN: YES. THE REST OF THIS RULING MADE CLEAR THAT HMM. AND CAN I, YOUR HONOR -- THIS IS TIM

HE WOULD ISSUE A NEW SUMMARY JUDGMENT SCHEDULE FOR AMAZON AT THE TIME HE DECIDES THE PENDING SUMMARY JUDGMENT MOTION. HE

DIDN'T GIVE ANY INDICATION IN HIS ORDER WHEN THAT WOULD BE, BUT IT COULD BE AT ANY TIME. THE COURT: MR. ZELLER: FOR GOOGLE. UH-HUH. AND IF I MAY -- THIS IS MIKE ZELLER

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THE ORDER ALSO ENDS BY SAYING, PERFECT 10 MUST STILL COMPLY WITH ANY DISCOVERY REQUESTS IN THIS CASE AND IN THE GOOGLE CASE UNLESS OTHERWISE ORDERED BY YOUR HONOR. THE COURT: WELL, THAT CERTAINLY MAKES SENSE. I

CAN'T DISAGREE WITH THAT.

BUT IT WAS GOOGLE, I BELIEVE, THAT

WAS SUGGESTING THAT WE STILL DEFER SOME OF THESE MOTIONS NEXT WEEK TO SEE WHAT HAPPENED ON THE SUMMARY JUDGMENT MOTIONS. MR. ZELLER: RIGHT. WHAT WE HAD SUGGESTED DEALT

WITH THE INFRINGEMENT CLAIMS, ALTHOUGH, YOU KNOW, MINDFUL THAT AMAZON HAS ITS OWN ISSUES ON THAT, THAT AT LEAST DEALS WITH THE MOST IMMEDIATE ISSUE WITH GOOGLE AS TO THE INFRINGEMENT ISSUE. OF COURSE OUR POSITION IS STILL THE SAME

AS WE HAD DISCUSSED LAST WEEK, WHICH IS THAT THE OTHER TWO MOTIONS SHOULD BE PROPERLY HEARD NOW. THE COURT: WELL -- ANYONE ELSE WANT TO JOIN IN? YOUR HONOR, MAY I RAISE ONE THING

MR. MAUSNER:

THAT HAS TO DO WITH US TRYING TO MEET AND CONFER REGARDING THESE MOTIONS. GOOGLE HAS TAKEN THE POSITION THAT THEY WANT TO HAVE A COURT REPORTER PRESENT AT ALL THE MEET AND CONFERS. WE -THE COURT: THAT'S AWFULLY EXPENSIVE. WHAT?

MR. MAUSNER: THE COURT:

THAT'S AWFULLY EXPENSIVE. IT IS.

MR. MAUSNER:

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THE COURT: NECESSARY.

I DON'T KNOW WHY THAT WOULD BE

MR. MAUSNER:

IT'S OUR POSITION THAT WE'RE WILLING

TO DO THAT SO LONG AS WE DON'T HAVE TO PAY FOR ANY OF THE COSTS OF THE REPORTER. WE'VE TOLD GOOGLE REPEATEDLY THAT WE WOULD CONSENT TO A COURT REPORTER IF GOOGLE WOULD PAY FOR US TO GET A COPY OF THE TRANSCRIPT. AND GOOGLE HAS REFUSED TO AGREE TO THAT.

AND BASICALLY WE'VE HAD TWO MEET AND CONFERS THAT WE COULDN'T GO FORWARD ON BECAUSE OF THIS ISSUE. WE HAD ONE

ACTUALLY TODAY, THAT WE SENT AN EMAIL TO GOOGLE SAYING LET'S TRY TO MEET AND CONFER ON THESE THINGS, AND THEY AGREED. WE SET UP THE TIME AT ONE O'CLOCK -THE COURT: ON WHICH -AND

MR. MAUSNER: -- ON THE PHONE -THE COURT: ON WHICH THINGS? ON THE PENDING

MOTIONS OR SOMETHING ELSE? MR. MAUSNER: PENDING MOTIONS. THE COURT: UH-HUH. AND WE ALL GOT ON THE PHONE. AND AND WE YES. ON SOME ISSUES REGARDING THE

MR. MAUSNER:

THEN IT TURNS OUT THERE WAS A COURT REPORTER THERE.

TOOK BASICALLY THE SAME POSITION, WHICH IS, THERE ARE TWO ALTERNATIVES. WE WOULD GO FORWARD WITH THE COURT REPORTER IF

GOOGLE WOULD PAY ALL THE COSTS, INCLUDING A COPY OF THE

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TRANSCRIPT FOR US; OR THEY DO IT WITHOUT A COURT REPORTER. BUT WE CAN'T HAVE -- DOING IT WITH THE COURT REPORTER AND THEN NOT BEING ABLE TO GET A COPY OF THE TRANSCRIPT WITHOUT PAYING FOR IT. I MEAN, THESE -- SOME OF THESE THINGS CAN

TAKE MANY HOURS, AND IT CAN GET VERY EXPENSIVE FOR US. THE COURT: I ALSO THINK -- I THINK THERE'S BUT IT

ARGUMENTS ON BOTH SIDES AS TO WHETHER IT'S HELPFUL.

MAY BE OBSTRUCTIVE TO PEOPLE CANDIDLY DISCUSSING RESOLUTION. SO -- I MEAN, I DON'T WANT TO HEAR ABOUT PEOPLE NOT TRUSTING EACH OTHER. THAT'S JUST UNACCEPTABLE TO ME. I KNOW THAT

SOME OF THESE ISSUES -- A LOT OF THESE ISSUES ARE VERY COMPLEX AND HAVE TO BE REDUCED TO WRITING. AND I CERTAINLY

DON'T WANT TO ENCOURAGE AN EMAIL BATTLE OVER WHO SAID WHAT IN A MEET AND CONFER. BUT, YOU KNOW, I'M NOT INCLINED TO IMPOSE A COST-SPLITTING ORDER FOR THIS KIND OF COURT REPORTING. MR. ZELLER: THE COURT: MR. ZELLER: AND IF I MAY, JUDGE HILLMAN. YES. THIS IS MIKE ZELLER FROM GOOGLE. NUMBER ONE, WE ARE PAYING

A COUPLE OF POINTS HERE. FOR THE COSTS OF THE REPORTER.

I CAN CERTAINLY TALK ABOUT I'LL SKIP THAT BUT WE ARE

THE HISTORY OF WHAT LED US TO THIS DECISION. UNLESS THE COURT IS INTERESTED IN HEARING IT. PAYING.

WE ARE, GOOGLE, ARE PAYING FOR THE COURT REPORTER.

THAT IS BY FAR THE BULK OF THE EXPENSE.

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WHAT MR. MAUSNER IS ALSO SAYING THAT WE ALSO SHOULD PAY FOR IS THE TRANSCRIPT, A COPY OF A TRANSCRIPT FOR THEM. THE COURT: WELL, IF YOU'RE NOT USING IT -- IF

YOU'RE NOT USING IT, AND YOU'RE NOT USING IT IN A MOTION OF SOME SORT, THEN, I SUPPOSE IT'S YOUR -- YOU PAID FOR IT. GET TO KEEP IT. MR. ZELLER: CORRECT. AND ULTIMATELY WHAT WE'RE YOU

HOPEFUL IS THAT THIS WILL BE CONDUCIVE TO AVOIDING THE KINDS OF DISPUTES IN THE PAST THAT HAVE ARISEN ABOUT MEET AND CONFERS, INCLUDING WHO SHOT WHOM AND, YOU KNOW, HE-SAID, SHE-SAID KIND OF DISPUTES. BUT AT THE END OF THE DAY WHAT WE'RE HOPEFUL IS THAT THE COURT REPORTER'S PRESENCE WILL AVOID THOSE DISPUTES AND NO ONE WILL EVEN NEED A TRANSCRIPT. I MEAN, IT'S NOT OUR

INTENTION THAT GOOGLE IS GOING TO ROUTINELY ORDER THESE TRANSCRIPTS EITHER. WE'RE HOPING THAT THIS WILL ACTUALLY

AVOID THOSE VERY KINDS OF DISPUTES. SO, TO IMPOSE SOME BLANKET REQUIREMENT THAT WE PAY FOR ONE FOR PERFECT 10 IS SOMEWHAT CONTRARY TO WHAT -- I MEAN, FIRST OF ALL, WE'RE ALREADY PAYING FOR THE BULK OF IT. NUMBER TWO, IT'S KIND OF CONTRARY TO WHAT WE'RE HOPING IS GOING TO HAPPEN HERE. AND, THEN, OF COURSE, ALSO, I MEAN, JUST IN GENERAL, THE AMERICAN RULE IS THE PARTIES PAY THEIR OWN COSTS. AND THAT'S TRUE FOR DEPOSITION TRANSCRIPTS AS WELL.

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AND WE THINK THAT THIS SHOULD BE THE SAME POINT HERE. THE OTHER -- THE OTHER POINT -MR. MAUSNER: HONOR? THE COURT: ARE YOU ASKING ME -- IS EVERYONE ASKING MAY I RESPOND TO THAT FIRST, YOUR

ME TO MAKE SOME ORDER ON THIS TODAY? MR. MAUSNER: YES.

AND MAY I RESPOND TO THAT, YOUR HONOR? THE COURT: YES, YES. OKAY. THEY DO NOT HAVE A RIGHT TO

MR. MAUSNER:

HAVE A COURT REPORTER PRESENT IN A TELEPHONE CONVERSATION BETWEEN US AND THEM. WE OBJECT TO THAT, AND WE WILL NOT

ALLOW IT UNLESS THEY AGREE TO -- YOU KNOW, WE'RE TRYING TO BE VERY REASONABLE HERE. WE'RE SAYING YOU HAVE NO RIGHT TO HAVE BUT IF YOU ARE GOING TO HAVE A COURT

A COURT REPORTER THERE.

REPORTER THERE, WE WILL CONSENT TO IT AS LONG -BY THE WAY, I'M GETTING AN ECHO. AN ECHO ALSO? THE COURT: NO. LET ME TRY A DIFFERENT PHONE BECAUSE ARE YOU GETTING

MR. MAUSNER: IT'S ECHOING BACK. HELLO? THE COURT:

YES. OKAY.

MR. MAUSNER: THE COURT:

IS THAT BETTER?

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MR. MAUSNER:

NO -- WELL, LET ME SEE.

SO, ANYWAY, OUR POSITION IS THAT, YOU KNOW, THEY HAVE NO RIGHT TO DO THIS AT ALL. THEY CANNOT IMPOSE A COURT

REPORTER ON A PRIVATE TELEPHONE CONVERSATION BETWEEN US AND THEM. BUT WE ARE WILLING TO DO IT SO LONG AS THEY WOULD PAY

FOR A TRANSCRIPT FOR US. AND FOR THEM TO SAY, OH, WE'RE NOT GOING TO GET THIS THING TRANSCRIBED, OF COURSE THEY'RE GOING TO GET IT TRANSCRIBED. AND THEN THEY'RE GOING TO HAVE AN UNFAIR

ADVANTAGE OVER US BECAUSE WE'RE NOT GOING TO HAVE THE TRANSCRIPT. SO, I THINK THE BAR IS VERY CLEAR THAT EITHER THERE IS NOT GOING TO BE A COURT REPORTER THERE UNLESS EVERYONE CONSENTS TO IT. OR IF -- AND WE HAVE SAID WE WILL CONSENT TO I DON'T THINK

IT AS LONG AS WE JUST GET A TRANSCRIPT OF IT. THAT THAT'S ASKING VERY MUCH. THE COURT: WELL, YOU KNOW WHAT.

I'M NOT IN A

POSITION TO MAKE A RULING ON THIS.

I HAVE TO SAY THIS EXACT

ISSUE HAS NOT COME UP IN MY 17 OR WHATEVER YEARS ON THE BENCH. AND IF YOU WANT A FORMAL RULING, THEN, I CAN'T DO

THAT TODAY. I WOULD LIKE TO MOVE ON -- AND I'M GOING TO ORDER THAT NO COURT REPORTER BE USED UNLESS THERE IS A COURT ORDER PERMITTING. YOU'RE JUST GOING TO HAVE TO STUMBLE ALONG IN

THESE MEET AND CONFERS AND MAKE AN APPROPRIATE MOTION, ONE

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SIDE OR THE OTHER. SO, THE QUESTION -MR. JANSEN: THE COURT: MR. JANSEN: ALEXA. THE COURT: MR. JANSEN: YES. AND I JUST WANT TO SAY WE HAVE NOT YOUR HONOR -YES? THIS IS MARK JANSEN FOR AMAZON.COM AND

TAKEN A POSITION ON THAT ONE WAY OR THE OTHER, BUT WE DID HAVE A FOLLOW-UP CALL WITH MR. MAUSNER THIS AFTERNOON AFTER THE TERMINATION OF A DISCUSSION WITH GOOGLE BECAUSE OF THIS CONFLICT. AND WE DID DISCUSS IN PARTICULAR THE FINANCIAL AND I WANT TO CONFIRM TO THE COURT THAT

DOCUMENTS IMPASSE.

WE HAVE CONFIRMED WITH MR. MAUSNER AND MS. KINCAID THAT THERE IS TWO UNSOLVABLE DISPUTES REGARDING THEIR OBLIGATION TO PRODUCE COMPLETE FINANCIAL RECORDS THAT IS CLEAR. AND WE

AGREE THAT THERE WAS AN IMPASSE ON THAT THAT NEEDS COURT RESOLUTION. SO, WE ACCORDINGLY TOOK OFF CALENDAR THE DEPOSITION OF PERFECT 10'S ACCOUNTANT THAT WAS NOTICED FOR THIS WEDNESDAY, WHICH WE HAD NOTICED WHEN WE DID -- BECAUSE OF THE PENDING AND NOW TEMPORARILY VACATED SUMMARY JUDGMENT MOTION DEADLINE. WE AGREED TO SET THAT DEPOSITION FOR SOME TIME IN

MID-OCTOBER ON THE ASSUMPTION THAT YOU WOULD ACTUALLY HAVE A CHANCE TO HEAR AT LEAST THE FINANCIAL DOCUMENTS PART OF THE

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MOTION IF NOT OTHER ASPECTS OF THE MOTION NEXT WEDNESDAY AS CURRENTLY -- OR NEXT TUESDAY AS CURRENTLY SCHEDULED SO THAT YOU COULD ISSUE A RULING AND PERFECT 10 CAN TIMELY PRODUCE WHATEVER, IF ANY, DOCUMENTS YOU ORDERED PRODUCED FURTHER. THE COURT: WHAT OTHER -- IS THAT THE ONLY PORTION

THAT YOU WOULD LIKE TO HAVE A RULING ON? MR. JANSEN: WELL, THAT WAS ALL THAT WE DISCUSSED

IN THE PHONE CALL THAT TIM CAHN AND I HAD WITH MR. MAUSNER AND MS. KINCAID AT 1:30 THIS AFTERNOON, BUT TO CONFIRM THAT MR. HERSH SHOULD BE PUT OFF UNTIL YOU CAN RULE ON AT LEAST THE FINANCIAL DOCUMENTS. HE IS THE ACCOUNTANT.

I THINK THERE'S OTHER ISSUES WHICH PROBABLY COULD BE ADDRESSED AT THIS HEARING NEXT TUESDAY, BUT THAT'S ONE THAT WE EXPRESSLY DID DISCUSS IN THE PHONE CALL WE JUST HAD ABOUT AN HOUR AND A HALF AGO. THE COURT: ALL RIGHT. WELL, WHY DON'T YOU -- I'M

GOING TO KEEP THE AMAZON MOTION ON CALENDAR FOR NEXT WEEK. AND IF THERE ARE TOPICS IN THAT MOTION THAT MAKE SENSE TO YOU TO DEFER SO THAT PERHAPS YOU WOULD BE PIGGY-BACKED ON WHATEVER ORDER I MADE IN GOOGLE ON SOME OF THEM, LET THE CLERK KNOW BY THE END OF THE DAY TOMORROW WHETHER THERE ARE ANY TOPICS IN YOUR MOTION THAT YOU ARE NOT SEEKING RULING ON NEXT WEEK. OTHERWISE I WILL ASSUME -YOUR HONOR, THE ISSUE OF OBJECTIONS TO

MR. JANSEN:

PERFECT 10'S FINANCIAL DISCLOSURES IS ACTUALLY TEE'D UP IN

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THE GOOGLE MOTION, WHICH AMAZON HAS FILED A REQUEST TO JOIN. SO, THAT'S THE MOTION THAT ADDRESSES THE AREAS OF PERFECT 10'S INADEQUATE PRODUCTION OF FINANCIAL DOCUMENTS. SO, THAT'S -MR. ZELLER: YOUR HONOR, MIKE ZELLER --

MR. JANSEN: -- THAT'S THE MOTION THAT WE WOULD LIKE TO KEEP ON CALENDAR. MR. ZELLER: SORRY FOR INTERRUPTING.

THIS IS MIKE ZELLER FROM GOOGLE. SETTING ASIDE THE TRANSCRIPT ISSUE, I MEAN, THERE HAVE BEEN ALREADY EXTENSIVE MEET AND CONFERS ON THESE ISSUES. WE'LL ATTEMPT TO TALK TO THEM AGAIN. BUT ONE THING I DID WANT TO MAKE CLEAR WAS IS THAT OVER THE COURSE OF TIME, INCLUDING RECENTLY, WE'VE SENT MULTIPLE LETTERS TO PERFECT 10, YOU KNOW, OUTLINING IN SOME DETAIL A NUMBER OF THESE ISSUES WHICH WE HAD HOPED TO RESOLVE ON THE, YOU KNOW, TWO ISSUES THAT GOOGLE IN PARTICULAR THINKS ARE STILL -- TWO MOTIONS RATHER THAT GOOGLE STILL THINKS IN PARTICULAR, YOU KNOW, SHOULD BE THE SUBJECT OF THE HEARING ON THE 22ND. SO, THERE HAVE BEEN OTHER COMMUNICATIONS. I DIDN'T

WANT THE IMPRESSION TO BE LEFT THAT SOMEHOW THE COURT REPORTER ISSUE IS COMPLETELY -THE COURT: WELL -- OKAY. MY --

MS. KINCAID:

YOUR HONOR --

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THE COURT:

WAIT A SECOND.

WHAT I WANT TO KNOW IS HAVE THERE BEEN SUBSTANTIVE DISCUSSIONS ON A SAMPLING PROTOCOL ALONG THE LINES THAT WAS USED SUCCESSFULLY IN THE MICROSOFT CASE. BECAUSE THAT IS THE

BULK OF -- I WON'T PUT AN ADJECTIVE TO IT -- THAT IS THE LARGE PART OF THE GOOGLE MOTIONS PUTTING ASIDE THE RFA MOTION. MR. ZELLER: OTHER MOTIONS. WHAT I WAS REFERRING TO WAS THE TWO

WE HAVE NOT -- WE HAVE NOT DISCUSSED THE AND THAT HASN'T TO MY KNOWLEDGE BEEN THE

SAMPLING PROCEDURE.

SUBJECT OF DISCUSSIONS -THE COURT: OKAY. SO, THE OTHER TWO MOTIONS, THE

GOOGLE MOTIONS, GOOGLE BELIEVES SHOULD GO FORWARD NEXT WEEK. MR. ZELLER: THE COURT: THAT'S CORRECT, YOUR HONOR. OKAY. NOW, I WOULD -- HOLD ON.

(PAUSE IN PROCEEDINGS.) THE COURT: BEFORE I SAY OKAY, I AM WONDERING ON

YOUR -- THE MOTION TO COMPEL DOCUMENTS, NOT THE RFAS AND NOT INTERROGATORIES 1 AND 3, BUT THE THIRD MOTION, IT SEEMS TO ME A LOT OF THAT MAY BE WRAPPED UP IN THE DECISION ON SAMPLING AS WELL. AND I CAN TELL YOU WHAT ISSUES IN PARTICULAR I

THINK THAT MAY APPLY TO. I THINK THAT MAY AFFECT ISSUES 2, 5, 6, 8, AND 9 AND MAYBE ONE OR TWO OTHERS. WHAT I'M THINKING IS THAT THERE MAY BE A FEW THINGS

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IN THE DOCUMENT MOTION, A FEW TOPICS THAT ARE RIPE FOR RULING AND WOULD NOT BE AFFECTED BY ANY SAMPLING DISCOVERY ORDER, BUT THERE MAY BE SEVERAL THAT NEED TO SEE THE OUTCOME OF MORE MEETINGS. MR. MAUSNER: YOU KNOW, ONE THING I'D HAVE TO NOTE,

YOUR HONOR, IS THAT SOME OF THESE THINGS HAVE BEEN COMPLETELY ELIMINATED, LIKE THE COPYRIGHT MATERIALS. GOOGLE SPENT OVER

A WEEK -- THEY HAD COPY SERVICES FOR OVER A WEEK IN OUR OFFICE COPYING ALL OF THE COPYRIGHT MATERIALS. SO, I DON'T

THINK EVEN GOOGLE WOULD CLAIM THAT THAT ONE IS STILL AT ISSUE. THE COURT: OKAY. FAIR ENOUGH.

MR. MAUSNER: COME TO MIND -THE COURT:

THERE'S SOME OTHER ONES -- PIC SCOUT

ALL RIGHT.

LET ME ASK GOOGLE.

WHAT IS

YOUR RESPONSE TO WHAT I JUST SAID? MR. ZELLER: WELL, I THINK IT'S -- NUMBER ONE, WHAT

I'D LIKE IS AN OPPORTUNITY TO GO THROUGH AND LOOK AT IT JUST TO MAKE SURE -THE COURT: YES. AND I THINK

MR. ZELLER: -- YOU KNOW, ONE BY ONE. YOUR HONOR'S POINT IS A FAIR ONE.

WHAT I GUESS I WAS MOSTLY FOCUSED ON IN TERMS OF THE DOCUMENTS AND WHAT IT IS THAT WE THINK CERTAINLY IS RIPE FOR DISPOSITION AT THIS POINT REALLY ENCOMPASSED THE

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FINANCIAL DOCUMENTS. OTHER END. THE COURT: MR. ZELLER: THE COURT: MR. ZELLER:

SO, I'VE SORT OF COME OUT FROM THE

SO, THAT'S NUMBER ONE. YES. YES. AND ANYTHING ELSE?

WELL, AGAIN, I MEAN, WE CAN'T -- I

DON'T HAVE THE ENTIRE FILING IN FRONT OF ME -THE COURT: MR. ZELLER: FLY. THE COURT: MR. ZELLER: YES, I UNDERSTAND. WHAT I'D LIKE TO DO, YOUR HONOR, IS I YES, RIGHT. -- SO I HESITATE TO JUST DO IT ON THE

CAN -- TODAY WE CAN GO THROUGH IT AND LOOK AT IT IN DETAIL, SEE WHAT IT IS -THE COURT: OKAY.

MR. ZELLER: -- AND WHAT WE THINK EITHER CAN BE DEFERRED OR DOESN'T REQUIRE A RULING AND THEN GIVE NOTICE TO THE PARTIES AND YOUR HONOR. THE COURT: OKAY. SO, WHAT I WOULD LIKE TO KNOW

AGAIN BY THE END OF TOMORROW -- IN FACT, I WOULD LIKE IT IN WRITING. MR. ZELLER: THE COURT: YES. JUST FOR MY CLERK'S BENEFIT. JUST FAX

A MEMO TO [phone] WITH COPY TO ALL COUNSEL INDICATING WHICH ISSUES IN THE DOCUMENT MOTION YOU'RE REQUESTING THAT I

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HEAR ORAL ARGUMENT ON NEXT TUESDAY. AND ON THE INTERROGATORY MOTION I'M ASSUMING ALL OF THAT IS NOT QUITE READY -- IT'S NOT READY FOR A RULING. AND I'M ASSUMING ON THE RFA MOTION THAT I'M GOING TO HEAR SOME GOOD NEWS, THAT THAT'S BEEN HOPEFULLY RESOLVED BY NEXT WEEK. AND I GAVE YOU MY THOUGHTS ON THAT A WEEK AGO.

THAT'S THE GENERAL SHAPE OF WHAT I THINK NEXT WEEK'S HEARING WILL BE. IT'S FINANCIAL DOCUMENTS AND MAYBE

ONE OR TWO OTHERS IN THE DOCUMENT -- IN GOOGLE'S DOCUMENT MOTION AS WELL AS PERHAPS A FEW RULINGS ON THE RFA MOTION. AND, THEN, FINALLY, AMAZON'S FINANCIAL DOCUMENTS ISSUE. MR. MAUSNER: SAME AS GOOGLE'S. THE COURT: LOUD AGAIN. DOCUMENTS. YES, I KNOW THAT. BUT I'M THINKING OUT WHICH I THINK THAT'S BASICALLY THE

I MEAN, I'M NOT GOING TO ORDER ALL DAMAGES FINANCIAL CONDITION IS SOMETHING ELSE. BUT

DAMAGES DOCUMENTS, YOU KNOW, THAT'S GOING TO HAVE TO -- I'M NOT GOING TO GRANT THAT. SO, I ASSUME THERE'S SOMETHING ELSE

THAT GOOGLE AND AMAZON ARE SEEKING. MR. CAHN: TALKING. WE BOIL IT DOWN TO BASICALLY THREE CATEGORIES OF FINANCIAL DOCUMENTS -- UNREDACTED STATEMENTS, BACK-UP SOURCE INFORMATION FOR THE FINANCIAL STATEMENT, AND COMMUNICATIONS BETWEEN THE ACCOUNTANT AND PERFECT 10. YOUR HONOR, THIS IS TIM CAHN FOR AMAZON

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THE COURT:

OKAY.

AND YOU REACHED AN IMPASSE ON

MR. CAHN: THE COURT:

YES. I DO NOT WANT TO HEAR ARGUMENT, BUT I'D

LIKE TO HEAR JUST BARE BONES WHAT THE DISPUTE IS. MR. MAUSNER. MR. MAUSNER: WELL, THAT WAS ACTUALLY ONE OF THE THERE ARE CERTAIN

THINGS THAT WE WANTED TO DISCUSS TODAY.

THINGS IN THE REDACTED -- WE REDACTED CERTAIN THINGS THAT ABSOLUTELY CANNOT BE GIVEN TO THEM. THE MAIN ONE IS ANYTHING AND WE

SHOWING THE AMOUNTS OF SETTLEMENTS IN OTHER CASES. CAN'T GIVE THAT TO THEM. AGREEMENTS.

THEY'RE CONFIDENTIAL SETTLEMENT

AND, YOU KNOW, WE CAN'T DO IT WITHOUT THE

CONSENT OF THE THIRD PARTY THAT WE SETTLED WITH. AND WE MADE AN ATTEMPT -THE COURT: WELL, THE COURTS -- I'M NOT TALKING

ABOUT THIS CASE, BUT COURTS MAKE THOSE ORDERS ALL THE TIME. AND MAYBE ATTORNEY'S-EYES-ONLY IF I WERE TO GRANT IT. THAT'S WHAT COURTS DO. MR. MAUSNER: WELL, IN THE PAST, YOUR HONOR, YOU BUT

DID NOT DO THAT, AND YOU DENIED THE MOTION OF ANOTHER PARTY IN THIS EXACT SAME SITUATION AND DID NOT ALLOW SETTLEMENT AGREEMENTS TO BE PRODUCED WHEN THE PARTIES DIDN'T WANT TO PRODUCE THEM. THERE IS STUFF THAT I THINK WE CAN AGREE TO

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UNREDACT I WAS LOOKING AT THIS MORNING. CATEGORY OF PROFESSIONAL FEES.

ONE IS THERE'S A

THEY HAVE -- AT LEAST FOR THE

ATTORNEY'S FEES PART OF THAT I THINK WE CAN UNREDACT THAT. AND WE WILL DO SO. THERE ARE OTHER THINGS, YOU KNOW, SUCH AS MEDICAL -- MEDICAL PAYMENTS FOR MODELS WHICH WE DON'T THINK THAT THEY NEED. YOU KNOW, MAYBE THERE'S A WAY THAT WE CAN GIVE

THEM AN OVERALL FIGURE THAT DOESN'T STATE WHO THE MODEL IS AND HOW MUCH WAS PAID OR WHATEVER. AND I JUST DON'T THINK

THERE'S ANY REASON THAT THEY NEED SOMETHING LIKE THAT. MR. CAHN: YOUR HONOR, THIS IS TIM CAHN FOR AMAZON.

THE RESULT OF PERFECT 10'S REDACTIONS RENDER MANY OF THE FINANCIAL STATEMENTS ALMOST MEANINGLESS IN TERMS OF BEING ABLE TO GAUGE THE FINANCIAL CONDITION OF THE COMPANY, UNDERSTAND FROM WHAT SOURCES OF REVENUE NUMBERS THAT APPEAR ON THE FINANCIAL STATEMENTS MYSTERIOUSLY RELATE TO, OR TO UNDERSTAND WHAT EXPENSES THAT PERFECT 10 IS CLEARLY USING TO CALCULATE THE PROFITABILITY OR LACK OF PROFITABILITY OF ITS BUSINESS AND TO KNOW WHAT THOSE EXPENSES ARE. THE COURT: WELL, WHY DO YOU NEED ANY -- WHY SHOULD

I GIVE YOU ANY OF THIS AT THIS JUNCTION WHEN WE HAVEN'T EVEN GOTTEN SAMPLING. CASE. MR. CAHN: WELL, I THINK JUDGE MATZ HAS INDICATED YOU HAVEN'T EVEN GOTTEN TO THE HEART OF THE

THAT HE IS GOING TO -- WHEN HE FINALLY DOES RULE ON THE

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PENDING SUMMARY JUDGMENT MOTIONS, HE'S GOING TO MOVE RATHER SWIFTLY IN THE AMAZON CASE. AND WE DON'T KNOW WHEN THAT

SUMMARY JUDGMENT DEADLINE -- FINAL DEADLINE WILL BE, BUT IT COULD BE, YOU KNOW, WITHIN A MONTH OF WHEN JUDGE MATZ RULES, FOR EXAMPLE. SO, WE BELIEVE THAT FINANCIAL -- THE DISCOVERY AS TO PERFECT 10'S FUNDAMENTAL BUSINESS PROFITABILITY IS CRITICAL TO ARGUMENTS THAT AMAZON WOULD WANT TO BRING ON A SUMMARY JUDGMENT MOTION. MR. ZELLER: AND IF I MAY ADD FOR GOOGLE, YOUR

HONOR, AS WE MENTIONED BEFORE, THERE ARE A VARIETY OF CLAIMS IN THIS CASE THAT ARE MADE AGAINST GOOGLE AND HAVE NOT BEEN MADE IN THE OTHER CASES. THESE INCLUDE RIGHT OF PUBLICITY.

THESE INCLUDE TRADEMARK INFRINGEMENT CLAIMS. SO, EVEN ASSUMING THAT THE DMCA MOTIONS ARE GRANTED, AND THAT THEY KNOCK OUT THE COPYRIGHT INFRINGEMENT CLAIMS, OR EVEN ASSUMING THAT WE LOSE ON SOME OR ALL OF THE DMCA MOTIONS, AND THEN THERE'S A SAMPLING PROCEDURE USED FOR THE COPYRIGHT INFRINGEMENT, THAT WOULD NOT OBVIATE OUR NEED FOR THE FINANCIAL DISCOVERY. AND IT IS CERTAINLY -- AS WAS DESCRIBED EARLIER -IT IS HOLDING UP DEPOSITIONS. TO TAKE -THE COURT: ALL RIGHT. IT IS HOLDING UP OUR ABILITY

MR. ZELLER: -- DISCOVERY THAT --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAKEN --

THE COURT:

OKAY.

MR. ZELLER: -- WILL AT SOME JUNCTURE NEED TO BE

THE COURT:

ALL RIGHT.

MR. ZELLER: -- REGARDLESS OF HOW THE COPYRIGHT INFRINGEMENT CLAIMS ARE TREATED. ALSO, WITH RESPECT TO -- IN ANSWER TO YOUR QUESTION, IT IS THAT MANY OF THESE DOCUMENTS ARE DOCUMENTS THAT PERFECT 10 HAS ALREADY PRODUCED, AT LEAST THAT'S THE BACK-UP, OF COURSE, OF AT LEAST THE FINANCIAL STATEMENTS THEMSELVES. THOSE ARE HEAVILY REDACTED.

AND IT JUST SEEMS THAT PARTICULARLY AS TO THOSE KINDS OF STATEMENTS, THERE'S ABSOLUTELY NO REASON WHY WE SHOULD NOT HAVE THAT INFORMATION NOW. I MEAN, THIS IS FAR

MORE WORK FOR PERFECT 10 TO REDACT ALL THIS INFORMATION THAN IT IS TO SIMPLY PRODUCE IT AS THESE EXIST. AND ONE THAT I HAD IN MIND PARTICULARLY WAS THE "PERFECT 10, INC. FINANCIAL REPORT, MAY 31ST, 2009." THE

ENTIRE EQUITY SIDE OF THIS FINANCIAL STATEMENT HAS BEEN REDACTED. SO, THERE ARE MAJOR COMPONENTS OF WHAT ONE WOULD WANT TO KNOW ABOUT THE FINANCIALS AND TO TIE IT IN SPECIFICALLY, FOR EXAMPLE, TO THE CLAIMS THAT WOULD NOT BE TOUCHED UPON EITHER BY THE SAMPLING OR THE DMCA MOTIONS REGARDLESS OF THEIR DISPOSITION WOULD BE TRADEMARK

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INFRINGEMENT.

IN ISSUE IS GOING TO BE THE VALUE OF THE AND THAT ISSUE IS JUST NOT GOING TO BE

PERFECT 10 MARK.

OBVIATED BY ANY OF THESE OTHER POTENTIAL CONTINGENCIES. THE COURT: OKAY. SO, HAVE -- I THINK MR. MAUSNER

GAVE ME -- NO, MR. ZELLER GAVE ME THREE AREAS THAT YOU'RE GOING TO FOCUS ON NEXT WEEK. AND THOSE AREAS -- THE

UNREDACTED STATEMENTS, BACK-UP DOCUMENTS, AND COMMUNICATIONS BETWEEN THE ACCOUNTANT AND PERFECT 10. THAT'S IT IN A NUTSHELL AS FAR AS AMAZON AND GOOGLE ARE CONCERNED? THAT'S THE HEART OF WHAT YOU'RE SEEKING. YES. AND UNREDACTED STATEMENTS --

MR. ZELLER: THE COURT:

YES, I SAID THAT.

MR. ZELLER: -- OF THE FINANCIALS THAT HAVE BEEN PRODUCED. THE COURT: YES. OKAY. I MEAN, WHEN I FOCUS ON

GETTING READY, I JUST WANT TO -- I'M GOING TO FOCUS ON THOSE. AND AMAZON AGREES WITH THAT? MR. CAHN: THE COURT: ALL RIGHT. YES. OKAY. SO, THEN, TO REITERATE WHAT I SAID FIVE

MINUTES AGO, I NEED TO KNOW IN THE DOCUMENT MOTIONS AND IN THE AMAZON MOTION WHETHER THERE'S ANYTHING ELSE THAT I'M GOING TO BE ASKED TO RULE ON NEXT WEEK OTHER THAN ISSUE NUMBER ONE AND THE CORRESPONDING PORTION IN -- ISSUE NUMBER ONE IN THE DOCUMENT MOTION AND THE CORRESPONDING PORTIONS OF

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AMAZON MOTIONS. AND, THEN, SECONDLY, POTENTIALLY BUT HOPEFULLY NOT ANY RFA ISSUES. ANYTHING ELSE IN GOOGLE'S DOCUMENT MOTION THAT THEY WISH ME TO CONSIDER? -- OTHER THAN ISSUE ONE, THEY'LL LET ME KNOW BY FAX BY THE END OF TOMORROW. MR. ZELLER: YES. AND ONE -- APART FROM THE

SUBSTANTIVE ISSUES I KNOW THAT THERE ARE A COUPLE OF ISSUES PERTAINING TO PROTECTIVE ORDERS AS WELL AS THE BATES STAMPING OF THE DOCUMENTS WHICH IS CAUSING SOME ISSUES. THAT THOSE ARE ADDRESSED IN THE DOCUMENT ISSUE. THE COURT: WELL -CAN I SAY SOMETHING? AND I KNOW

MR. MAUSNER: THE COURT:

IN A MINUTE.

THINGS LIKE BATES STAMPING, AGAIN, THAT'S GOING TO BE SUBSUMED WITHIN A RULING ON SAMPLING. WON'T IT? MR. ZELLER: NO. THIS IS -- THIS DEALS WITH THE

PRODUCTION THAT PERFECT 10 HAS ALREADY MADE TODAY. THE COURT: MR. ZELLER: STAMPED. RIGHT. BUT THE DOCUMENTS ARE NOT BATES

THERE ARE NO CONTROL NUMBERS. THE COURT: RIGHT, RIGHT. BUT WHY WOULD I ORDER

THAT AT THIS POINT UNTIL I'VE RULED ON THE SAMPLING ISSUE. WHY AM I GOING TO HAVE THEM BATES STAMP EVERYTHING THAT

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THEY'VE PRODUCED. MR. ZELLER: IT'S ALREADY A PAST ISSUE IN THE SENSE

THAT WE NEED TO HAVE CONTROLS OF WHAT HAS ALREADY BEEN PRODUCED. AND THAT IS RELEVANT EVEN TO THE DMCA ISSUES AND A GOOD BULK OF THAT PRODUCTION IS THE THEY'VE BEEN PRODUCED TO US ON HARD

APART FROM SAMPLING.

CONTENT OF DMCA NOTICES.

DRIVE WITHOUT ANY CONTROL NUMBERS, WITHOUT ANY REAL DOCUMENTATION AS TO WHAT'S ON THERE. AND THERE ALREADY ARE DISPUTES AS TO WHAT HAS BEEN PRODUCED AND WHAT HASN'T. AND, OF COURSE, IT IS CUSTOMARY IN

ANY LITIGATION, PARTICULARLY ONE OF THIS SIZE, FOR THERE TO BE BATES NUMBERS OR CONTROL NUMBERS OF SOME SORT ASSOCIATED WITH THE PRODUCTION. AND THAT'S WHAT WE DON'T HAVE. MAY I RESPOND -- MAY I RESPOND TO

MR. MAUSNER: THAT, YOUR HONOR? THE COURT:

BRIEFLY. THERE HAVE BEEN -- THERE HAVE BEEN

MR. MAUSNER:

SEVEN SUMMARY JUDGMENT MOTIONS THAT HAVE BEEN FILED WITHOUT HAVING ANY PROBLEMS AT ALL REGARDING THIS STAMPING EVERY DOCUMENT. THE WAY WE PRODUCED IT TO THEM IS VERY ORGANIZED. IT'S ON DISKS AND A HARD DRIVE. SUBFOLDERS AND SO ON. AND FOLDERS THAT HAVE

IT'S A MUCH MORE ORGANIZED WAY THAN THESE ARE ORGANIZED.

JUST STAMPING EVERY DOCUMENT.

AND, YOU KNOW, SINCE THIS MOTION WAS FILED, GOOGLE

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HAS FILED THREE SUMMARY JUDGMENT MOTIONS.

AMAZON HAS FILED THIS HASN'T

AT LEAST ONE OR TWO SUMMARY JUDGMENT MOTIONS.

BEEN A -- YOU KNOW, HASN'T PREVENTED THEM FROM FILING THEIR SUMMARY JUDGMENT MOTIONS. WE'VE ALSO FILED OUR SUMMARY JUDGMENT MOTIONS. NONE OF THIS HAS PREVENTED ANY PARTY FROM FILING THESE MOTIONS. I'D ALSO NOTE THAT AWHILE BACK -- AND THIS WAS BEFORE FURTHER PRODUCTIONS HAD TAKEN PLACE -- MR. MALUTTA, WHO IS ONE OF AMAZON'S ATTORNEYS, STATED THAT HE GOT ESTIMATES FROM CONTRACTORS AS TO HOW MUCH IT WOULD COST TO BATES STAMP ALL OF THESE DOCUMENTS. WAS $1 MILLION. NOW, TO PUT PERFECT 10 TO THE COST OF PAYING $1 MILLION TO STAMP -- NUMBER STAMP ON ALL OF THESE DOCUMENTS WHEN THERE'S BEEN NO PROBLEM AT ALL IN DOING THESE SUMMARY JUDGMENT MOTIONS WITHOUT IT SEEMS TO BE VERY BURDENSOME AND WASTEFUL AT THIS POINT. MR. ZELLER: MIKE ZELLER. AND THE ESTIMATE HE GOT AND

IT IS JUST PUZZLING THAT A PLAINTIFF WOULD BE ASSERTING IN ANY CASE IN THIS DAY AND AGE THAT BATES NUMBERS SHOULDN'T BE ATTACHED TO THEIR PRODUCTION. I DON'T -- IT'S

JUST -- IT'S ONE OF THOSE SELF-EVIDENT PROPOSITIONS. AND I HAVE NO IDEA WHAT THE BASIS WAS OR THE ACCURACY OF THE REPRESENTATION BEING MADE ABOUT WHAT MR.

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MALUTTA SAID.

CERTAINLY AREN'T HEARING FROM PERFECT 10 AN

ACTUAL ESTIMATE OR WHY THESE WEREN'T STAMPED IN THE FIRST PLACE. I'VE NEVER HAD A CASE, AND I WOULD BE HARD-PRESSED

FOR ANY ATTORNEY ON THIS PHONE TO IDENTIFY A CASE, LET ALONE ONE OF THIS MAGNITUDE, WHERE A MAJOR PARTY TO IT WASN'T STAMPING ITS PRODUCTION AND PROVIDING AT LEAST SOME IDENTIFYING CONTROL INFORMATION. THE COURT: WELL, IT WOULD HELP ME TO KNOW A

REALISTIC COST ESTIMATE. MR. MAUSNER: ESTIMATE DONE. WELL, YOU KNOW, WE HAVEN'T HAD A COST AND MR. MALUTTA --

BUT AMAZON HAD IT DONE.

THIS IS ON THE RECORD OF THE HEARING IN FRONT OF JUDGE MATZ -- STATED THAT IT'S $1 MILLION. MR. JANSEN: OKAY. THAT'S -- THIS IS MARK JANSEN.

I DON'T BELIEVE MR. MALUTTA'S ON THE PHONE RIGHT NOW, BUT I BELIEVE THAT IS TOTALLY TAKEN OUT OF CONTEXT BY MR. MAUSNER. THE ESTIMATE -- TO THE EXTENT THERE WAS AN ESTIMATE, IT WAS JUST A VERY GENERAL ESTIMATE, WHAT ARE THE COSTS TO ACTUALLY ORGANIZE PERFECT 10'S PRODUCTION -- BECAUSE PERFECT 10, ALTHOUGH MR. MAUSNER CLAIMS OTHERWISE, THE DOCUMENT PRODUCTION THEY'VE MADE IS COMPLETELY UNORGANIZED. THERE IS NO LOGIC TO THE PRODUCTION. IT IS ESSENTIALLY AN

ELECTRONIC EQUIVALENT OF THE OLD-FASHIONED MIX-UP OF PAPERS IN TOTALLY UNRELATED WAYS.

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OUR PARALEGAL -- AND WE HAVE STARTED TO GO THROUGH IT TO PREPARE FOR DEPOSITIONS. IT'S ONE THING TO FILE A

SUMMARY JUDGMENT MOTION, YOUR HONOR, BUT IT'S HARD TO -ACTUALLY TO PREPARE FOR DEPOSITION AND TRIAL IN A CASE WHERE DOCUMENTS ARE NOT ORGANIZED, THEY'RE NOT NUMBERED. AND WE

EXPECTED -- WE CAN'T EVEN FIND A COPY OF PERFECT 10'S MAGAZINES IN THIS PRODUCTION. YOU'D THINK AT THE VERY LEAST

THEY WOULD HAVE PRODUCED THEIR MAGAZINES, WHICH IS THE BASIC PREMISE OF THEIR BUSINESS, AND IN WHICH THEY CLAIM ALL OF THEIR COPYRIGHTED MATERIALS WERE FIRST PUBLISHED TO US IN AN ORGANIZED GROUP. -MR. MAUSNER: THAT'S -BUT WE HAVEN'T EVEN GOTTEN THEIR MAGAZINES

MR. JANSEN: -- IN ANY ORGANIZED WAY. MR. MAUSNER: MR. JANSEN: AND MARK -AND WE CANNOT FIND THOSE MAGAZINES,

MR. MAUSNER:

MARK -- MARK, AN ATTORNEY FROM YOUR

OFFICE AND A PARALEGAL FROM YOUR OFFICE WENT TO OUR OFFICE LAST WEEK. OKAY. AND WE GAVE THEM EVERYTHING IN A CONFERENCE ROOM. WE GAVE THEM ALL OF THE COPYRIGHT WE GAVE THEM ALL OF THE DEPOSIT MATERIALS, AND THEY WERE SITTING

AGAIN.

CERTIFICATES.

WHICH ARE THE DISKS AND THE MAGAZINES. RIGHT THERE IN THE CONFERENCE ROOM. AVAILABLE IN MY OFFICE.

AND THEY'RE STILL

GOOGLE SEVERAL MONTHS AGO SPENT OVER

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A WEEK WITH A COPY SERVICE.

YOU KNOW, ONE COPY SERVICE FOR AND THEY

THE HARDCOPIES AND ANOTHER ONE FOR THE DISKS. COPIED EVERYTHING.

AND I'VE TOLD YOU SEVERAL TIMES YOU HAVE A CHOICE. YOU CAN EITHER GET AN EXACT COPY WHAT GOOGLE COPIED OR YOU CAN REPRODUCE EXACTLY -- DO THE COPYING YOURSELF. SPEND A WEEK DOING IT. IN THE PAST. YOU CAN

BUT WE'VE GIVEN YOU ALL OF THAT STUFF

IT'S ALL ON HARD DRIVES. OKAY. NOW, JUDGE HILLMAN, THIS IS

MR. JANSEN: MARK JANSEN.

MR. MAUSNER -- GOOGLE BROUGHT THIS MOTION.

I'M

SIMPLY EXPLAINING WE HAVE HAD A REAL PROBLEM IN THE WAY DOCUMENTS ARE PRODUCED. THEY ARE NOT NUMBERED. AND FOR THE

VERY FIRST TIME ON THIS PHONE CALL MR. MAUSNER SEEMS TO BE INDICATING THAT THEIR FIRST -- PERFECT 10'S FIRST DOCUMENT PRODUCTION IN THIS CASE IS MAKING AVAILABLE THE DOCUMENTS IN HIS OFFICE LAST TUESDAY. MR. MAUSNER: MR. JANSEN: MR. MAUSNER: STUFF FOR -MR. JANSEN: INTERRUPT ME. YOUR HONOR, WHAT I WAS REFERRING TO WHEN I WAS MAKING THE COMMENT WAS THAT WE HAVE GOTTEN OVER THE YEARS A MR. MAUSNER, MR. MAUSNER, PLEASE DON'T THAT'S NOT TRUE -I THINK -THEY HAD THAT -YOU'VE HAD THAT

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LARGE ELECTRONIC PRODUCTION FOR, YOU KNOW, DISKS OF WHAT -AS MR. MAUSNER SAYS, FOLDERS WITHIN SUB-FOLDERS WITHIN SUB-FOLDERS OF ALLEGEDLY, QUOTE, ORGANIZED MATERIAL THAT WE HAVE UNDERSTOOD TO BE THEIR DOCUMENT PRODUCTION. BUT AS I SAID, YOU WOULD THINK AT THE VERY LEAST IF WE WERE GETTING AN ORGANIZED PRODUCTION AS MR. MAUSNER CLAIMS WE'RE GETTING, WE WOULD HAVE AT LEAST RECEIVED FULL COPIES OF EACH OF THE PERFECT 10 MAGAZINES AS PART OF THEIR INITIAL PRODUCTION. I ASSUME IT WOULD BE PART OF THEIR INITIAL

DISCLOSURE THAT JUST THE COPYRIGHTED -- THAT THE MAIN, YOU KNOW THE MAIN IMAGES ON WHICH THEY'RE BASING THEIR COMPLAINT. BUT WE'VE NEVER, AS FAR AS I'M AWARE, EVER RECEIVED AN ORGANIZED PRODUCTION OF ALL THE -- ALL OF THOSE MAGAZINES IN ONE PLACE. WE CAN'T EVEN LOCATE THEIR MAGAZINES IN OUR

DOCUMENT PRODUCTION TO DATE. THE DOCUMENT PRODUCTION THAT WAS ALLEGEDLY MADE LAST WEEK WAS, AGAIN, TOTALLY UNORGANIZED. BOXES OF ALLEGED

COPYRIGHT DEPOSIT MATERIAL THAT HAS NO RELATIONSHIP WHATSOEVER TO THE REGISTRATION APPLICATIONS. AND THAT'S

ANOTHER ISSUE WHICH I THINK WE'LL HAVE TO ADDRESS AT A FUTURE HEARING. BUT THEY HAVE ABSOLUTELY NO CORRELATION BETWEEN

THEIR COPYRIGHT AND REGISTRATION APPLICATION AND THE CORRESPONDING COPYRIGHT DEPOSIT MATERIAL. TO BE A FUNDAMENTAL PROOF ISSUE AT TRIAL. AND THAT'S GOING AND IT MAY BECOME

A DISCOVERY ISSUE WE HAVE TO ADDRESS LATER, NOT ON THIS PHONE

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CALL, I HOPE, AND NOT ON THE PENDING MOTION. THE COURT: FOR ALL OF YOU. ALL RIGHT. HERE IS THE QUESTION I HAVE

AND I DON'T WANT AN ANSWER BECAUSE -- TODAY

-- BECAUSE YOU'RE NOT GOING TO BE ABLE TO GIVE IT TO ME. BUT -- BECAUSE IS THIS NOT THE CASE THAT CALLS OUT FOR SOME SORT OF CREATIVE DOCUMENT IDENTIFICATION IN A COST-EFFECTIVE WAY SO THAT EVERYONE KNOWS WHAT HAS BEEN PRODUCED AND CAN REFER TO THE SAME DOCUMENT FOR WHATEVER PURPOSE IT MAY BE USED, WHETHER IT BE FOR DEPOSITION, SUMMARY JUDGMENT, OR TRIAL WITHOUT GOING TO A MILLION-DOLLAR EXPENSE, WHICH I CERTAINLY AM NOT GOING TO ORDER THAT. ON THE OTHER HAND, I HEAR LOUD AND CLEAR WHAT THE DEFENDANTS' PROBLEMS ARE. AND THEY'RE DEALING WITH A MESS, MR. MAUSNER, AN ABSOLUTE INDECIPHERABLE MESS THAT DR. ZADA AND PROBABLY DR. ZADA ALONE FULLY UNDERSTANDS WHAT IT COMPRISES. SO THAT --

YOU KNOW, THAT'S REALLY WHAT WE'LL NEED TO DISCUSS NEXT WEEK. AND YOU TALK ABOUT A MEET AND CONFER. THAT'S

WHAT I NEED A MEET AND CONFER ON AS WELL AS SAMPLING IS HOW TO GET CONTROL OF THIS CASE AND THESE DOCUMENTS SO THAT EVERYTHING IS FIXED IN TIME AND EVERYTHING IS SEARCHABLE AND -MR. MAUSNER: IT IS ACTUALLY SEARCHABLE NOW BECAUSE TIF

ADOBE FORMAT IS THE BEST WAY TO SEARCH SOMETHING.

DOCUMENTS ARE JUST, YOU KNOW, LOOSE DOCUMENTS THAT ARE

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NUMBERED IN SOME RANDOM WAY. LOGICALLY.

WE HAVE THEM ARRANGED

THEY'RE IN, YOU KNOW, FILES AND SUB-FILES AND

SUB-FILES THAT, YOU KNOW, ARRANGE THEM TO EXACTLY POINTING TO WHAT THEY ARE. AND WE'LL SHOW YOU ON THE 22ND. BUT HAVE YOU SHOWN THEM? HAS THERE

THE COURT:

BEEN TESTIMONY OR DECLARATION OR SOMETHING THAT SAYS HOW THEY'RE ORGANIZED. MR. MAUSNER: YES, THERE HAVE BEEN. NOW, THERE HAS

BEEN IN CONNECTION WITH THIS MOTION AND OTHER THINGS THAT -OTHER THAN WHAT'S BEEN FILED IN COURT. IT ON THE 22ND. MR. ZELLER: THIS IS MIKE ZELLER AGAIN. I'M NOT BUT, SURE, WE'LL DO

REALLY SURE THE BASIS OF WHY MR. MAUSNER IS SAYING SOME OF THESE POINTS ABOUT HIS PRODUCTION. THESE FILES ARE NOT SEARCHABLE. DISORGANIZED. FOR A FACT, A NUMBER OF

AND THEY CERTAINLY ARE

AND I CERTAINLY THINK THAT THE BEST WAY OF

DOING THIS RATHER THAN TALKING IN GENERALITIES AND MAKING REPRESENTATIONS ON BOTH SIDES IS WE WILL BRING SOME EXAMPLES FOR YOUR HONOR TO SEE AT THE HEARING. MR. MAUSNER: WE WILL DO SO, ALSO. THE ONLY ONES

THAT AREN'T SEARCHABLE ARE THE ONES THAT WERE NOT SEARCHABLE IN THEIR NATIVE FORMAT. IF THEY WERE SEARCHABLE IN THEIR

NATIVE FORMAT, WE'VE KEPT THEM THAT WAY. THE COURT: HAVE YOU CONSIDERED JOINTLY RETAINING

AN I.T. PERSON AS A NEUTRAL TO SOLVE THIS IMPASSE?

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MR. MAUSNER: YOUR HONOR. THE COURT: DISCUSSING? MR. MAUSNER: THE COURT: MR. ZELLER:

WE HAVE -- NO, WE HAVE NOT DONE THAT,

WOULD THAT BE SOMETHING WORTH

POSSIBLY, YES.

MR. ZELLER, WHAT DO YOU THINK? I THINK THAT'S A -- I THINK THAT'S A I MEAN, I THINK THAT --

VERY PROMISING IDEA, YOUR HONOR.

THEY'RE CERTAINLY ARE, AND I'VE USED IT IN SOME OTHER CASES, ALTHOUGH, NOT QUITE LIKE THIS IN THIS PARTICULAR CIRCUMSTANCE. DATA ROOMS. YOU KNOW, CERTAINLY PART OF IT WILL DEPEND ON THIS KIND OF FUNDAMENTAL ISSUE ABOUT ORGANIZATION AND HOW IT'S PROVIDED TO US. THAT MAY AT LEAST ASSIST IN KNOWING WHAT THE BUT THERE CERTAINLY ARE SERVICES THAT OPERATE

UNIVERSE OF MATERIALS ARE SO WE DON'T HAVE DISPUTES ABOUT WHAT WE WERE GIVEN AND WHEN WE WERE GIVEN IT WITH RESPECT TO ELECTRONIC FILES. AND, SO, THAT MAY HELP ON -- I THINK ON

SOME POTENTIAL FRONT. THE COURT: YOU KNOW I'M NOT WORRIED ABOUT IMPOSING

A LITIGATION EXPENSE ON EVERYONE INCLUDING PERFECT 10, WHATEVER ITS FINANCIAL CONDITION MAY BE. BUT I WANT THERE TO

BE, YOU KNOW, A REALISTIC RELATIONSHIP TO SOME GOOD COMING OUT OF THIS, SOMETHING WORTHWHILE COMING OUT OF IT. AND

BATES STAMPING MAY BE THE LEAST EFFECTIVE PRODUCTIVE AND

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EXPENSIVE THING THAT I COULD DO, SO. MR. ZELLER: IN A SECOND. I GUESS I GO BACK TO THAT ISSUE BUT --

BUT THE ISSUE OF A DATA ROOM, FOR EXAMPLE,

WHERE PEOPLE PROVIDE, YOU KNOW, INFORMATION OR DATA, WHATEVER THE CASE MAY BE, TO AN I.T. NEUTRAL, THOSE OPERATIONS TEND TO BE RELATIVELY INEXPENSIVE. COURSE. THEY'RE NOT, YOU KNOW, FREE, OF

BUT THEY ARE NOT A CONSIDERABLE EXPENSE. BUT ON THE OTHER HAND -- I MEAN, I KNOW FOR A FACT

BECAUSE CERTAINLY I HAVE LOTS OF CASES, INCLUDING THIS ONE, WHERE WE PRODUCED DOCUMENTS IN ELECTRONIC FORM. CONVERT THEM TO TIF FILES. IT. NORMALLY YOU

YOU ASSOCIATE A BATES NUMBER WITH IT'S JUST -- IT IS NOT AND IT'S NOT

IT'S EMBEDDED IN THE DOCUMENT.

ROCKET SCIENCE. THAT EXPENSIVE.

AND IT'S NOT THAT DIFFICULT.

PERHAPS, PERFECT 10 HAS MADE IT MORE DIFFICULT BECAUSE OF THE FACT THAT IT PRODUCED THESE PRIOR FILES IN A NON-SEARCHABLE FORMAT WITHOUT CONTROL NUMBERS AND IN A HIGHLY DISORGANIZED, FRANKLY, INCOMPREHENSIBLE MANNER. THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: THE COURT: LET ME ASK -SO, THERE'S -LET ME ASK YOU THIS. UH-HUM. WELL, FINISH YOUR THOUGHT. SURE. FINISH YOUR THOUGHT. I INTERRUPTED I'M SORRY.

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YOU. MR. ZELLER: WAS -THE COURT: ALL RIGHT. SURE. NO, NO. THAT'S -- I THINK THAT

WHAT I WOULD LIKE TO KNOW IS CAN WHAT YOU JUST DESCRIBED, WHICH DOES INCLUDE SORT OF DIGITAL BATES STAMPING -MR. ZELLER: UH-HUM.

THE COURT: -- YOU KNOW, CAN I GET ONE OR TWO ESTIMATES OF WHAT THAT WOULD COST WITHIN A WEEK -- YOU KNOW, BY NEXT WEEK. MR. ZELLER: FRONT. YES. I'LL SEE WHAT WE CAN DO ON OUR

CERTAINLY, FOR MANY CASES JUST AS A MATTER OF COURSE

WE TAKE THE DOCUMENTS, YOU KNOW, WHATEVER FORMAT THEY'RE IN, THEY GET CONVERTED TO TIF. OUTSIDE LITIGATION SUPPORT ALSO, A LOT OF FIRMS HAVE THE AND THEN THAT TIF FORMAT, SO, YOU CAN

SERVICES DO THIS ALL THE TIME.

CAPABILITY OF DOING IT IN-HOUSE. IT'S EASILY SEARCHABLE.

I MEAN IT'S OCR.

ACTUALLY SEARCH THE WHOLE THING, WHICH IS QUITE DIFFERENT FROM WHAT WE CURRENTLY HAVE IN THIS PRODUCTION. BUT WE CAN CERTAINLY -- WE CAN CERTAINLY GET YOU ESTIMATES. I KNOW THAT WE DO THEM AS A MATTER OF COURSE IN

MANY OTHER CASES. THE COURT: WELL, THEY -- I MEAN THIS IS, YOU KNOW,

I'M NOT TYING YOU DOWN TO WHAT -- I'M NOT HOLDING YOU TO ANY

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NUMBER YOU GIVE ME.

BUT BASED ON YOUR PRIOR EXPERIENCE AND

YOUR GENERAL KNOWLEDGE OF WHAT -(TAPE CHANGED TO SIDE 2.) THE COURT: -- BASED ON WHAT YOU'VE RECEIVED IN

THIS CASE FROM PERFECT 10, I MEAN CAN YOU GIVE ME A WILD ESTIMATE. MR. ZELLER: UNFORTUNATELY, I THINK IT WOULD BE

JUST A SHEER GUESS BECAUSE THE REALITY IS IS THAT I KNOW THAT THERE ARE DRIVES THAT HAVE BEEN PRODUCED BY PERFECT 10 THAT I HAVE NEVER LOOKED AT FOR THE SIMPLE REASON THAT OTHER PEOPLE DESCRIBED THEM AS JUST SUCH A MESS AND INCOMPREHENSIBLE THAT IT WOULDN'T BE WORTH MY TIME. GIVING SUCH A WILD GUESS. INFORMATION -THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: IMAGINE THAT IS TRUE. BUT I MEAN UNDER --- IN SHORT ORDER. UNDER A HUNDRED THOUSAND. I -- IT'S A GUESS. I WOULD -- I WOULD SO, FRANKLY, I WOULD JUST BE

BUT I CAN GIVE THE COURT

YOU KNOW, CERTAINLY THE KINDS OF RATES

THAT I AM CHARGED FOR DOING PRODUCTIONS, THAT'S WHAT I WOULD -- I WOULD EXPECT IT WOULD BE BELOW THAT NUMBER. BUT, YOU

KNOW, A LARGE PART OF IT DEPENDS TOO ON VARIABLES SUCH AS, YOU KNOW, WHAT'S THE DIFFICULTY OF THE CONVERSION FROM THE NATIVE FORMAT TO A TIF FILE. OBVIOUSLY, SOME FILES -- DATA

FILE FORMATS ARE MORE EXOTIC THAN OTHERS AND REQUIRE, YOU

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KNOW, MORE EFFORT AND TIME. BASED.

MUCH OF IT IS JUST REALLY TIME

BUT LET ME PUT IT THIS WAY.

I MEAN, I DO LARGE

PRODUCTIONS WHERE IN THE COURSE OF A DAY OR TWO I TURN OVER ALL MANNER OF ELECTRONIC FILES TO THE OUTSIDE LITIGATION FIRM. AND THEY SEND THE THING BACK, YOU KNOW, IN A FULLY

SEARCHABLE TIF FORMAT DOCUMENT WITH BATES NUMBERS IN A DAY OR TWO. SO, IT'S JUST -THE COURT: MR. ZELLER: THAT -IT'S NOT THAT --

THE COURT: -- CAN'T BE A HUNDRED THOUSAND DOLLARS. MR. ZELLER: RIGHT. EXACTLY. I MEAN THAT'S JUST

NOT ANYWHERE NEAR THE RATES OF WHAT I'M NORMALLY SEEING. IT ALSO -- PART OF MY HESITATION IS BECAUSE I DON'T WANT TO BE WRONG ON THESE NUMBERS. BUT, ALSO, OF COURSE,

USUALLY WITH THESE LITIGATION FIRMS, THE OUTSIDE KIND OF SUPPORT FIRMS, THEY'RE DOING A LOT OF OTHER THINGS FOR US, TOO. SO, I DO SEE BILLS. THE COURT: MR. ZELLER: UH-HUM. BUT, YOU KNOW, EVERYTHING THAT GOES

UNDERNEATH IT, YOU KNOW, WOULD BE A LITTLE BIT -- AGAIN, IT WOULD JUST BE A GUESS. INFORMATION ON THIS -THE COURT: MR. ZELLER: THAT --- YOU KNOW, IN SHORT ORDER. AND I CAN GET -- I CAN GET YOU HARD

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THE COURT:

THAT WOULD BE GREAT. JUST --

MR. MAUSNER: THE COURT:

YES.

MR. MAUSNER: -- TO COMPLETE THE RECORD, YOUR HONOR. THIS IS FROM THE AUGUST 18TH, 2008 HEARING BEFORE JUDGE MATZ. MR. MALUTTA, COUNSEL FOR AMAZON, STATED, QUOTE, AND IT'S NEAR

"WE HAVE HAD QUOTES FROM VENDORS.

A MILLION DOLLARS TO CONVERT THEIR NATIVE FILES INTO SOMETHING THAT'S USABLE IN A STANDARD LITIGATION DATABASE, CLOSE QUOTE. THE COURT: OKAY. SO. BUSINESS IS TOUGH. MAYBE

MR. MAUSNER: THE COURT:

ALL RIGHT.

THEY'LL MAKE A GOOD OFFER NOW. ALL RIGHT. SO, I THINK I KNOW WHERE WE ALL ARE SO

THAT -- THIS ISSUE, THIS BATES STAMP ISSUE IS ISSUE IX, ROMAN NUMERAL IX, I GUESS, IN THE DAMAGES MOTION. SO, WE HAVE WE

ISSUE I, WHICH IS DAMAGES CLAIMS AND FINANCIAL CONDITION. HAVE ISSUE IX.

AND I'LL HEAR WHAT ELSE, IF ANY, THAT GOOGLE

AND AMAZON WANT A RULING ON NEXT WEEK. YOU'RE GOING TO DO YOUR BEST COLLECTIVELY, THAT IS, GOOGLE AND PERFECT 10, ON THE RFAS. INTERROGATORY 1 AND 3

MOTION WILL BE NOT HEARD NEXT WEEK PENDING FURTHER DISCUSSIONS. AND, BY THE WAY, HAS GOOGLE HAD -- MR. ZELLER, HAVE

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YOU HAD A CHANCE TO LOOK AT THE WAY IT WAS DONE IN MICROSOFT, THE SAMPLE PROTOCOL, WHICH MAY BE OF SOME USE IN THIS CASE. MR. ZELLER: HAVE. THE SHORT ANSWER IS TO A DEGREE WE

IF I UNDERSTAND IT, THERE WAS AN ISSUE -- AND I DON'T OTHER PEOPLE ON THE PHONE BUT I BELIEVE THAT

BELIEVE IT HAS BEEN RESOLVED YET.

CAN CORRECT ME IF I AM WRONG ON THIS.

THERE WAS AN ISSUE OF AT LEAST ONE OF THE TRANSCRIPTS WHERE THIS WAS DISCUSSED. IT'S BEEN SEALED. MR. MAUSNER: MR. ZELLER: HAPPENING, BUT -THE COURT: I THINK IT MAY HAVE ALSO -- IT WAS AN THAT'S NOT CORRECT. OKAY. IT WAS UNSEALED. IT'S NOT AVAILABLE TO US. I BELIEVE

I WASN'T AWARE OF THAT

ORDER THAT JUDGE MATZ ISSUED, WASN'T IT? MR. ZELLER: THE COURT: I'M SORRY, AN ORDER? MR. MAUSNER. AN ORDER UNSEALING IT. THAT'S

MR. MAUSNER: CORRECT. THE COURT:

YES.

I MEAN, IT WAS A -- IT WAS A

COURT ORDER THAT ORDERED THE SAMPLING PROCEDURES. MR. MAUSNER: THE COURT: YES.

YES. THERE WAS A COURT ORDER --

MR. MAUSNER: THE COURT:

YES.

MR. MAUSNER: -- FOR THE SAMPLING PROCEDURES --

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THE COURT:

AND IT WAS UNSEALED. BUT THEN THE

MR. MAUSNER: -- THAT'S CORRECT. SAMPLING DOCUMENTS WERE ACTUALLY FILED.

THE TRANSCRIPT WAS

JUST A POST-SETTLEMENT DISCUSSION BETWEEN JUDGE MATZ, ANDREW BRIDGES, AND ME REGARDING WHETHER, YOU KNOW, SAMPLING WAS USEFUL. IT WAS ORIGINALLY SEALED. AND THEN JUDGE MATZ ASKED WE DIDN'T.

US IF WE HAD ANY OBJECTION TO IT BEING UNSEALED. AND YOU ORDERED IT UNSEALED. THE COURT: MR. ZELLER: OKAY.

BUT I THINK THERE ARE A COUPLE OF YOU KNOW, ONE DEALS WITH

ISSUES THAT ARE BEING CONFLATED.

THAT PARTICULAR TRANSCRIPT, WHICH I NOW KNOW IS NOT SEALED, SO -- OR, AT LEAST, NOW IT'S UNSEALED. LOOK AT THAT. SO, WE WILL GO AND

BUT THAT THE BIGGER ISSUE DEALS WITH -- I

MEAN, CERTAINLY WE HAVE BEEN INVOLVED IN PRIOR DISCUSSIONS WITH JUDGE MATZ REGARDING THIS SAMPLING PROCEDURE IN GENERAL, YOU KNOW, AS I MENTIONED BEFORE IN THE LAST CALL THAT IS, YOU KNOW, NOT AN ISSUE THAT WE ARE CONSENTING TO. WE'LL DO AS WE ARE ORDERED. OBVIOUSLY,

AND WE'LL, YOU KNOW, BASED ON

YOUR SUGGESTIONS HERE SEE IF THERE IS SOME WAY OF DISCUSSING IT WITH PERFECT 10. BUT I STRONGLY SUSPECT BASED ON THE PRIOR DISCUSSIONS THAT WE DID HAVE ON SAMPLING AS WELL AS SOME OF THE INDICATIONS WHERE I -- AT LEAST MY IMPRESSION WAS, AND, PERHAPS, I'M WRONG, THAT THE PARTIES DIDN'T BELIEVE THAT THE

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SAMPLING WAS VERY CONDUCIVE ULTIMATELY TO RESOLUTION. WOULD -THE COURT: FOR THEM. MR. JANSEN: THE COURT: MR. JANSEN: YOUR HONOR, THIS IS MARK -YES. THIS IS MARK JANSEN. I BELIEVE IT WAS.

AND IT

AND I BELIEVE IT WAS

I READ THE

TRANSCRIPT THAT WAS UNSEALED.

THAT WAS A DISCUSSION THAT WAS

ORDERED TO OCCUR BY JUDGE MATZ BETWEEN THE MICROSOFT COUNSEL AND PERFECT 10 COUNSEL. AND THE DISCUSSION AS I RECALL

READING IT WAS THAT REALLY THE -- THE WAY THIS WORKED OUT WAS FAIRLY UNWIELDY AND NOT HELPFUL TO MICROSOFT IN ACTUALLY UNDERSTANDING THE CLAIMS AGAINST IT. THE COURT: TRANSCRIPT. WELL, WE'VE ALL READ THE SAME AND I THINK IT

I THINK IT WAS SOMEWHAT HELPFUL.

WOULD POTENTIALLY BE EVEN MORE HELPFUL IN THE GOOGLE CASE THAN IT WAS IN MICROSOFT. I'M NOT SURE ABOUT AMAZON. BUT

THAT'S THE DIRECTION I'M GOING. ABOUT THAT RIGHT NOW. MR. JANSEN:

AND THAT'S ALL I HAVE TO SAY

AND WE UNDERSTAND, YOUR HONOR.

BUT

YOU'RE ASKING -- YOU BELIEVE THE PARTIES SHOULD MEET AND CONFER -THE COURT: PENNING IN AND OUT. WAIT. SAY IT AGAIN. YOU'RE KIND OF

WHAT DID YOU -I'M SORRY. AND WE UNDERSTAND THAT

MR. JANSEN:

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YOU'RE ASKING US TO MEET AND CONFER ON THAT ISSUE. THE COURT: MR. ZELLER: HONOR. THE COURT: ALL RIGHT. NOW, GIVEN THE LIMITED YES. AND WE WILL CERTAINLY DO THAT, YOUR

NATURE OF NEXT WEEK'S HEARING WHY DON'T WE DO IT TELEPHONICALLY. AND I'LL SAVE EVERYONE A LOT OF MONEY THAT ALL RIGHT.

CAN GO TOWARDS BATES STAMPING OR SOMETHING. MR. MAUSNER: THE COURT: MR. ZELLER: THE COURT: YES. SURE.

OKAY. THAT SOUNDS FINE, YOUR HONOR. ALL RIGHT. I'LL SET IT UP FOR A

TELEPHONIC TEN O'CLOCK NEXT TUESDAY. MR. MAUSNER: THE COURT: OH, IT'S GOING TO BE TEN O'CLOCK.

THAT'S WHAT I HAD, YES. OKAY.

MR. MAUSNER: THE COURT:

I CAN ADJUST THAT IF EVERYONE WANTS TO.

I'D LIKE TO GET IT DONE THEN. MR. MAUSNER: THE COURT: ALL RIGHT. NO. MR. ZELLER: THE COURT: THANKS. THAT COVERS IT FROM OUR -GOING, GOING, GONE. ALL RIGHT. THAT'S FINE WITH PERFECT 10. OKAY.

OKAY.

ANYTHING ELSE WE CAN TAKE CARE OF NOW?

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MR. ZELLER: THE COURT:

THANK YOU VERY MUCH. BYE-BYE. THANK YOU, YOUR HONOR. BYE.

MR. MAUSNER:

(PROCEEDINGS ADJOURNED.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN 12/1/09 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE