Perfect 10 Inc v. Google Inc et al

Filing 639

TRANSCRIPT for proceedings held on 11/3/09 10:04a.m.. Court Reporter/Electronic Court Recorder: Babykin CourtHouse Services, phone number 626-963-0566. 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 12/28/2009. Redacted Transcript Deadline set for 1/7/2010. Release of Transcript Restriction set for 3/7/2010. (bem)

1 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) LOS ANGELES, CALIFORNIA NOVEMBER 3, 2009 (10:04 A.M. TO 11:10 A.M.)

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

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2 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 ALSO PRESENT: FOR AMAZON.COM, ALEXA INTERNET: 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 BRAD LOVE ATTORNEYS AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: RACHEL M. HERRICK KASSABIAN ATTORNEY AT LAW 555 TWIN DOLPHIN SUITE 560 REDWOOD SHORES, CALIFORNIA TOWNSEND TOWNSEND & CREW BY: MARK JANSEN ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CALIFORNIA DR. NORMAN ZADA PRESIDENT, PERFECT 10 ERIN MC KINNEY PARALEGAL TOWNSEND TOWNSEND & CREW

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3 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 INDE CASE NO. CV 04-9484-AHM(SH) PROCEEDINGS: X NOVEMBER 3, 2009

TELEPHONIC CONFERENCE

4 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 RECORD. MR. JANSEN: ALEXA INTERNET. I'M IN MY OFFICE WITH ERIN MC KINNEY WHO'S A PARALEGAL IN OUR OFFICE WORKING ON THE CASE. THE COURT: CAN EVERYONE HEAR ME? NOT TOO WELL, YOUR HONOR. THIS IS MARK JANSEN FOR AMAZON.COM AND LOS ANGELES, CALIFORNIA; TUESDAY, NOVEMBER 3,2009; 10:04 A.M. THE CLERK: THIS IS A TELEPHONIC CONFERENCE

REGARDING CASE NUMBER CV 04-9484, PERFECT 10 VERSUS GOOGLE. COUNSEL, PLEASE STATE YOUR APPEARANCE FOR THE

MS. KINCAID: THE COURT: MR. JANSEN: MARK JANSEN.

THIS IS THE BEST WE CAN DO, SO. I CAN HEAR YOU, YOUR HONOR. THIS IS

I CAN HEAR YOU.

HOPEFULLY, YOU CAN HEAR ME.

THE COURT:

I CAN HEAR YOU FINE. YOUR HONOR, THIS IS RACHEL HERRICK

MS. KASSABIAN:

KASSABIAN WITH QUINN EMANUEL. ALSO ON THE CALL FROM QUINN EMANUEL ARE MIKE ZELLER AND BRAD LOVE. AND I CAN HEAR YOU FINE. AND, OF COURSE,

WE'RE HERE ON BEHALF OF GOOGLE. THE COURT: OKAY. YOU'RE A LITTLE -- I NEED TO

HEAR YOU A LITTLE BETTER. MS. KASSABIAN: IS THIS BETTER? THE COURT: YES. YES.

MS. KASSABIAN:

OKAY.

5 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 YOU SAID. THE COURT: I SAID I DON'T KNOW WHETHER I ACCEPT OR WHAT I DO WANT STILL THOUGH IS MR. MAUSNER: YOUR HONOR, JEFF MAUSNER, VALERIE

KINCAID, AND DR. ZADA ON BEHALF OF PERFECT 10. I'M HAVING SOME TROUBLE HEARING YOU, BUT WE'LL DO THE BEST WE CAN. THE COURT: ALL RIGHT. WELL, I'VE READ THROUGH THE AND

LATEST ROUND OF BRIEFING ON THIS BATES STAMPING ISSUE. THAT IS THE ONLY ISSUE I'M GOING TO ADDRESS TODAY. DON'T NEED ANYONE REALLY TO REHASH THEIR POSITIONS. I JUST WANT TO ASK ONE OR TWO QUESTIONS.

AND I

AND THAT

IS I THOUGHT WHAT I WAS GOING TO GET ON THAT ISSUE WAS THE NAME OF A NEUTRAL EXPERT WHO COULD BE APPOINTED BY ME TO ADVISE ME WHAT IS -- WHAT IS POSSIBLE IN THIS AREA AT A REASONABLE PRICE. AND I HAVEN'T GOTTEN THAT. I ONLY GOT A

DECLARATION FROM PERFECT 10 BY MR. GARCIA. ANYONE ELSE.

NOTHING FROM AND I

AND THE GARCIA ONE SAYS WHAT IT SAYS.

DON'T NECESSARILY ACCEPT THAT OR REJECT IT. BUT WHERE ARE YOU ON JUST GETTING -MR. MAUSNER: I DIDN'T HEAR THE LAST SENTENCE THAT

REJECT MR. GARCIA'S OPINION.

A RECOMMENDED NEUTRAL NAME THAT WILL BE THE COURT'S EXPERT WITH THAT PERSON'S FEES SPLIT EQUALLY. THAT. MS. KASSABIAN: YOUR HONOR, MAY I SPEAK TO THAT? AND I HAVEN'T GOTTEN

6 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 HEARING. MR. ZELLER: THE COURT: I'M HAVING TROUBLE HEARING ALSO. ALL RIGHT. WHY DON'T WE -THE COURT: YES. RACHEL KASSABIAN.

MS. KASSABIAN:

AS I THINK YOU'RE AWARE SINCE PERFECT 10 HAS SUBMITTED SOME DOCUMENTS TO THIS EFFECT, THE PARTIES HAVE SPENT A GOOD PORTION OF THE PAST I DON'T KNOW 10 DAYS OR SO TRYING TO AGREE ON THE SECOND PROPOSAL. AS OF LAST WEEK IT BECAME CLEAR THAT AN AGREEMENT ON THE SECOND PROPOSAL WAS NOT GOING TO BE FORTHCOMING. THE COURT: THAT'S CLEAR TO ME. RIGHT. AND SO -I'M SORRY. WHAT DID

MS. KASSABIAN: MR. MAUSNER: YOU SAY, YOUR HONOR? THE COURT:

WAIT A MINUTE.

THAT YOUR UNWILLINGNESS TO INCLUDE

EXTERNAL DISKS IN THE SECOND ALTERNATIVE IS A DEAL-BREAKER. MS. KASSABIAN: MR. MAUSNER: RIGHT. SO -- SO -I'M HAVING TROUBLE

I'M SORRY.

MR. MAUSNER: YOU, THAT MAY HELP. IT'S VERY -THE COURT:

IF YOU COULD MOVE THE PHONE CLOSER TO AND

THERE JUST SEEMS TO BE AN ECHO.

ALL RIGHT.

WE'LL TRY THIS. THANK YOU, YOUR HONOR.

MS. KINCAID: MR. ZELLER:

MUCH BETTER. MUCH BETTER.

7 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 MR. MAUSNER: THE COURT: OH, YES. THE DEAL-BREAKER IS THAT

ALL RIGHT.

PERFECT 10 IS UNWILLING TO APPLY THE ALTERNATIVE PROTOCOL, NUMBER 2, TO EXTERNAL DISKS, WHICH IS THE WHOLE GAME RIGHT THERE. MS. KASSABIAN: RIGHT. AND, SO, YOUR HONOR, WE

TRIED TO WORK SOMETHING OUT.

IT APPEARED THAT THAT IS NOT AND, SO, WE HAVE

GOING TO HAPPEN UNLESS THE COURT ORDERS IT.

SPENT A GOOD PORTION OF THE LAST WEEK MAKING PHONE CALLS TO VARIOUS ADOBE OFFICES, CALL CENTERS, HELP DESKS, ET CETERA TRYING TO FIND AN EXPERT. WHAT WE'VE -- OUR CONCLUSION AT THIS POINT IS THAT ADOBE ITSELF DOES NOT OFFER SUCH A SERVICE, THAT THEY REFERRED US TO A NUMBER OF DIFFERENT THIRD PARTY -- I GUESS I WOULD CALL THEM THIRD-PARTY AFFILIATES -- CONSULTING COMPANIES THAT WORK VERY CLOSELY WITH ADOBE AND ARE FAMILIAR WITH THEIR SERVICES. SO, WE'RE GATHERING THOSE NAMES NOW.

AND AS WE UNDERSTOOD YOUR HONOR'S ORDER, YOU WANT A NEUTRAL EXPERT. YOU DON'T WANT SOMETHING -CORRECT.

THE COURT:

MS. KASSABIAN: -- DUELING EXPERTS LIKE MR. GARCIA VERSUS SOMEONE FROM -THE COURT: CORRECT. SO, WE HAVEN'T, YOU KNOW, QUOTE,

MS. KASSABIAN:

UNQUOTE, ENGAGED ANYONE BECAUSE OUR PLAN AS WE UNDERSTOOD IT

8 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 JANSEN. WAS TO SUBMIT THOSE NAMES TO YOUR HONOR. AND, THEN, YOUR

HONOR AND THE PARTIES JOINTLY COULD SORT OF INSTRUCT THAT PERSON ON WHAT THE -THE COURT: RIGHT. -- COURT WOULD LIKE. SO, THAT IS WHAT I'M

MS. KASSABIAN: THE COURT: LOOKING FOR.

ALL RIGHT.

AND, OBVIOUSLY, I'M NOT GOING TO GET THAT IN SO, LET'S JUST TALK ABOUT GOING

THE NEXT COUPLE OF DAYS.

FORWARD AND THE RECENT FINANCIAL DOCUMENT PRODUCTION. MS. KASSABIAN: MORE THING. YOUR HONOR, COULD I JUST ADD ONE

WE WILL HAVE THOSE NAMES FOR YOU THIS WEEK. OKAY. WE'RE VERY CLOSE TO THAT. AND WE

THE COURT:

MS. KASSABIAN:

CAN PROVIDE THOSE THIS WEEK. THE COURT: ALL RIGHT. BUT ANYWAY.

MS. KASSABIAN: THE COURT:

AND, HOPEFULLY, ALL THREE SIDES WOULD

SAY, YEAH, THIS IS A NEUTRAL, AND THIS IS WHAT THIS NEUTRAL SAYS, AND THIS IS WHAT THE NEUTRAL SAYS IT WILL COST. I'LL BLESS IT, AND WE'LL MOVE ON. BUT IN TERMS OF THE RECENT FINANCIAL DOCUMENT PRODUCTION AND UPCOMING DEPOSITIONS, I'D LIKE TO HAVE SOMETHING IN PLACE TODAY. MR. JANSEN: YOUR HONOR, THAT'S -- THIS IS MARK AND

AND THAT'S THE REASON WE WANTED TO RAISE THE ISSUE

9 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 IS BECAUSE WE UNDERSTAND THERE'S OBVIOUSLY A LARGE VOLUME OF PREVIOUSLY PRODUCED DOCUMENTS. BUT OBVIOUSLY NUMBERING IS AND TO THE AND --

CRITICAL, AND I THINK EVERYONE RECOGNIZES THAT.

EXTENT WE CAN DO IT GOING FORWARD WE SHOULD DO IT. THE COURT: OKAY.

SO, WHAT WAS PRODUCED IS 2,600

PAGES OF FINANCIAL DOCUMENTS THAT WERE PRODUCED -- ON A DISK? MR. JANSEN: PARTS TO YOUR ORDER. THAT'S RIGHT. YES. THERE WERE TWO

THE FIRST PART WAS TO PRODUCE AND THOSE ARE PRODUCED

UNREDACTED FINANCIALS, AS YOU RECALL.

ON A DISK IN A SERIES OF ADOBE FILES -MS. MC KINNEY: ONE. ONE ADOBE FILE AND

MR. JANSEN: -- ONE ADOBE FILE.

ACCORDING TO ERIN MC KINNEY, WHO'S HERE AS A PARALEGAL. THEY WERE UNNUMBERED. SO, WE NUMBERED THEM, AND WE USED

EXACTLY THE PROCESS THAT GOOGLE HAS BEEN TALKING ABOUT.

WE

USED THE ADOBE NUMBERING SYSTEM AND NUMBERED THOSE DOCUMENTS AT MINIMAL COST. COST. SO, WE'RE NOT SEEKING REIMBURSEMENT OF THAT

BUT IT JUST SEEMS AS IF THE PLAINTIFF SHOULD BE

NUMBERING THE DOCUMENTS AS THEY'RE PRODUCED. THEY DID PRODUCE DOCUMENTS IN ADVANCE OF AN EMPLOYEE DEPOSITION OF SHEENA CHOU. THOSE. AND THEY DID NUMBER ALSO, A PDF. BUT

THAT WAS A VERY SMALL PRODUCTION.

THEY DIDN'T NUMBER THE FINANCIAL DOCUMENTS. THEN, THE SECOND COURT-ORDERED PRODUCTION TOOK PLACE LAST FRIDAY, THE 23RD. AND THOSE WERE I GUESS THE

10 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 DOCUMENTS THAT WERE ORDERED PRODUCED ON ONE OF THE RECENT DISCOVERY ORDERS. AND IT WAS QUITE A LARGE PRODUCTION. IT

WAS ALSO UNNUMBERED. THE COURT: OR SOMETHING ELSE? MR. JANSEN: THAT'S THE PROBLEM. ONE OF THE WHAT WERE THE -- WERE THOSE FINANCIAL

PROBLEMS, AND ONE OF THE REASONS FOR THE EX PARTE APPLICATION IS WE -- THEY WERE SUPPOSED TO BE RESPONSIVE TO A SERIES OF DOCUMENT REQUESTS THAT GOOGLE HAD BROUGHT AS PART OF ITS MOTION. AND YOU MAY RECALL -- A NUMBER OF DOCUMENT REQUESTS

THAT YOU HAD REPHRASED TO BE -- PERFECT 10 WAS ORDERED TO PRODUCE DOCUMENTS SUFFICIENT TO SHOW -- FOR EXAMPLE, DOCUMENT REQUEST NUMBER 166, THE EFFECT OR IMPACT, IF ANY, OF ANY CONDUCT OR ACTION BY GOOGLE ON THE MARKET SHARE OF PERFECT 10. THE COURT: MR. JANSEN: OKAY. DOCUMENT REQUEST NUMBER 165 -- I'M

READING FROM PAGE 6 OF YOUR ORDER DATED 10/6/2009, DOCUMENT 560. FOR EXAMPLE, DOCUMENT NUMBER 1- -- REQUEST NUMBER 165, YOUR ORDER WAS TO PRODUCE DOCUMENTS SUFFICIENT TO SHOW THE MARKET SHARE OF PERFECT 10 IN ANY MARKET. WELL, THESE WERE BASICALLY FINANCIAL TYPES. WE

WERE EXPECTING FINANCIAL-TYPE -- MARKET SHARE-TYPE DOCUMENTS FOR THE MOST PART.

11 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 THE COURT: MR. JANSEN: UH-HUH. BUT THEY'RE -- IN THE DECLARATION THAT

WAS SUBMITTED BY I THINK GOOGLE'S COUNSEL TOM NOLAN SHOWS THAT -- IT WAS A MISH-MASH. WAS JUST KIND OF A DUMP. IT WAS A COMPLETELY UN- -- IT

WE HAD HUGE AMOUNTS OF PHOTOGRAPHS

AND IMAGES THAT DON'T SEEM TO BE RESPONSIVE TO REQUESTS. SO, ONE THING WE'RE ASKING FOR IS THAT THE PLAINTIFF ACTUALLY -- WE THINK, NUMBER ONE, THAT PLAINTIFF NEEDS TO NUMBER THE DOCUMENTS. AND, NUMBER TWO -- AND REPRODUCE THEM NUMBERED. AND, NUMBER TWO, WITH THAT PRODUCTION, WE THINK THEY SHOULD BE ORDERED -- PLAINTIFF -- BECAUSE HE DUMPED A LOT OF THINGS THAT AREN'T RESPONSIVE TO EACH REQUEST -- SHOULD BE ORDERED TO IDENTIFY WHAT DOCUMENTS ARE RESPONSIVE TO THE REQUESTS THAT WERE NARROWED BY THE COURT, TO ORDER PRODUCTION OF THOSE DOCUMENTS SUFFICIENT TO SHOW IN EVERY INSTANCE. THAT'S ONE AREA OF RELIEF WE'RE ASKING FOR IMMEDIATELY. THE NEXT THING IS THAT WE'VE SCHEDULED THE ACCOUNTANT'S DEPOSITION, BRUCE HERSH, FOR NOVEMBER 19TH AND 20TH, THE WEEK BEFORE THE THANKSGIVING WEEK. THAT'S THURSDAY

AND FRIDAY -- OR MAYBE WEDNESDAY AND THURSDAY. IN THE COURT'S ORDER, THE SAME COURT ORDER WITH DOCUMENT NUMBER 598 REQUIRED THAT PERFECT 10 PRODUCE BY THE 9TH OF THIS MONTH. SO, THAT'S LIKE NEXT MONDAY THEY'RE

12 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 ORDERED TO PRODUCE ANY ADDITIONAL DOCUMENTS THAT MR. HERSH IS EXPECTED TO RELY UPON IN ANSWERING QUESTIONS AT HIS DEPOSITION. AND THOSE ALSO NEED TO BE NUMBERED.

SO, WE NEED TO GET AN ORDER, NUMBER ONE, THAT -WE'D LIKE TO ASK THE COURT TO ISSUE AN ORDER, NUMBER ONE, THAT THE DOCUMENTS PRODUCED FROM NOW FORWARD, INCLUDING THE DOCUMENTS FOR MR. HERSH'S DEPOSITION, BE NUMBERED BY PERFECT 10 ON A GO-FORWARD BASIS. NUMBER TWO, WE'RE ASKING THAT THE DOCUMENTS PRODUCED LAST FRIDAY BE NUMBERED AND REPRODUCED BY THE PLAINTIFF. AND, NUMBER THREE, WE ASK THAT WITH RESPECT TO THE DOCUMENTS PRODUCED LAST FRIDAY, THAT PERFECT 10 BE ORDERED TO IDENTIFY WHICH DOCUMENTS ARE RESPONSIVE TO -THE COURT: MR. JANSEN: THE COURT: I GOT IT. THANKS. LET ME HEAR FROM MR. MAUSNER. OKAY. GOOD MORNING, YOUR HONOR. I UNDERSTAND WHAT YOU WANT.

MR. MAUSNER:

FIRST OF ALL, THIS IS DONE AS AN EX PARTE APPLICATION. THEY'RE SAYING THAT THERE'S AN EMERGENCY. WHAT

I WANT TO KNOW IS WHY DO THEY NEED THE FINANCIAL STATEMENTS BATES NUMBERED TO TAKE A DEPOSITION. WHAT THEY'RE GOING TO

DO IS THEY'RE GOING TO PICK OUT DOCUMENTS THAT THEY WANT TO USE. THEY'RE GOING TO MARK THEM AT THE DEPOSITION WITH AN SO, WHAT DIFFERENCE DOES IT MAKE IF THEY'RE

EXHIBIT NUMBER.

13 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 BATES NUMBERED OR NOT. I'D LIKE THEM TO ARTICULATE EXACTLY WHAT DIFFERENCE IT MAKES TO THEM IN TAKING THIS DEPOSITION WHETHER THE DOCUMENTS ARE BATES NUMBERED. THE COURT: MR. JANSEN: THE COURT: MR. JANSEN: OKAY. YOU CAN RESPOND, MR. JANSEN.

YES, IF YOU'D LIKE ME TO, YOUR HONOR. YES. WELL, I THINK IT'S PRETTY CLEAR. IN

THE DISCUSSION WE'VE HAD, FOR EXAMPLE, AT THE HEARING ON SEPTEMBER 22ND THAT WE NEED DOCUMENTS NUMBERED THAT ARE PRODUCED SO THAT WE HAVE THEM FOR -- WE HAVE THEM NUMBERED FOR INTEGRITY PURPOSES. NOT JUST AT THE DEPOSITION BUT GOING

FORWARD AS WE GET READY FOR TRIAL AND FOR USE IN SUMMARY JUDGMENT MOTIONS. BECAUSE OF THE NATURE OF THE DEPOSITIONS AND THE TIME LIMITS IMPOSED BY THE FEDERAL RULES, IT'S QUITE LIKELY THAT DOCUMENTS THAT ARE PRODUCED NEXT WEEK OR THAT HAVE BEEN PRODUCED ALREADY IT MAY OR MAY NOT BE MARKED AT THE DEPOSITIONS -- WILL BE MAYBE REFERRED TO AS SUMMARY JUDGMENT MOTIONS, FOR EXAMPLE, AND BE AUTHENTICATED AS HAVING BEEN PRODUCED BY THE PLAINTIFF. AND WITHOUT SOME NUMBERING SYSTEM

IT'S VERY HARD TO CONFIRM THAT THAT'S THE CASE. SO, YOU KNOW, I THINK WHAT'S KIND OF -- NUMBERING AND BEING ABLE TO AUTHENTICATE THE DOCUMENT CAME FROM THE PLAINTIFF'S PRODUCTION IS JUST A VERY IMPORTANT PART OF ANY

14 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 COMPLEX LITIGATION OR ANY LITIGATION AT ALL REALLY. AND, SO,

IT'S BETTER HAVING THE NUMBERING DONE NOW RATHER THAN, AGAIN, TO HAVE TO FIGHT ABOUT IT LATER. THE EMERGENCY IS THAT THEIR DOCUMENT PRODUCTIONS ARE HAPPENING NOW, AND THEY'RE GOING TO BE HAPPENING NEXT MONDAY. ROAD. AND I'M NOT SURE WHAT'S GOING TO BE COMING DOWN THE

BUT I THINK WE NEED A PROTOCOL GOING FORWARD AS SOON

AS POSSIBLE. MS. KASSABIAN: THIS IS RACHEL KASSABIAN. THE COURT: YES. AS TO WHY WE NEED THIS NUMBERING YOUR HONOR, COULD I ADD SOMETHING.

MS. KASSABIAN:

NOW, IN ADDITION TO THE FACT THAT OBVIOUSLY NOT NUMBERING THEM ON A GOING-FORWARD BASIS JUST CAUSES THIS SAME PROBLEM TO FESTER AND GROW. YOU KNOW, WE HAVE BEEN -- YOUR HONOR ISSUED AN ORDER INDICATING THAT THE DEFENDANTS HAVE, AT LEAST FOR THIS FIRST HALF, A STRICT TIME LIMIT OF I THINK IT WAS 10 OR 11 HOURS. AND I'LL TELL YOU HAVING LOOKED AT THESE FINANCIAL THEY'RE

DOCUMENTS A LOT OF THESE ARE GENERAL LEDGERS. BALANCE STATEMENTS.

THEY ARE DOCUMENTS THAT ALL KIND OF LOOK SO, TRYING TO SORT THROUGH THESE

THE SAME AT FIRST GLANCE.

AND REFER TO THESE DURING A DEPOSITION IS GOING TO BE VERY, VERY TIME CONSUMING IF THEY ARE NOT NUMBERED. SO, YOU KNOW, YOU'VE GOT THE -- YOU'VE GOT, LET'S

15 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 NOT TRUE. SEE, A GENERAL LEDGER THAT MAY BE A HUNDRED FIFTY PAGES THICK FOR ONE YEAR AND ANOTHER LEDGER FOR ANOTHER YEAR AND THEN SUPPORTING AND BACK-UP DOCUMENTS FOR THOSE FINANCIALS. YOU'RE GOING TO HAVE TO SIT THERE AND KIND OF READ INTO THE RECORD WHAT YOU'RE SEEING IN ORDER FOR EVERYONE TO MAKE SURE THAT THEY'RE LOOKING AT THE SAME DOCUMENT. CONTROL NUMBERS ARE FOR. THE COURT: WELL, LET ME ASK THIS. MAY I RESPOND TO THAT? THAT'S JUST THIS IS AND THAT'S WHAT

MR. MAUSNER:

AT A DEPOSITION YOU NUMBER AN EXHIBIT.

EXHIBIT NUMBER 1 TO THIS DEPOSITION. NUMBERS FROM THE PREVIOUS DEPOSITION.

OR YOU CONTINUE THE THEY CANNOT ARTICULATE

ANY REASON THAT THESE THINGS HAVE TO BE NUMBERED FOR THE DEPOSITION. AND I WANT TO -- YOU KNOW, I WANT TO REITERATE AGAIN, THERE'S NOTHING IN THE FEDERAL RULES OF CIVIL PROCEDURE THAT REQUIRES THAT A PRODUCING PARTY BATES NUMBER DOCUMENTS. THE COURT: THE PROBLEM IS THAT YOU'VE DUMPED AND THEY DON'T EVEN KNOW WHAT SO, ASIDE FROM THE BATES NUMBERED

EVERYTHING ONTO ONE DISK. DOCUMENTS ARE RESPONSIVE. -MR. MAUSNER:

MOST OF THEM ARE RESPONSIVE.

LET ME

GIVE YOU SOME OF THE THINGS THAT WE WERE ORDERED TO PRODUCE DOCUMENTS FOR. WE GOT -- OKAY. DOCUMENT REQUEST NUMBER

16 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 SERVICE. FORM. 110. "PERFECT 10 IS ORDERED TO PRODUCE DOCUMENTS SUFFICIENT TO SHOW THE FACT ALLEGED IN PARAGRAPH 47 OF ITS ANSWER TO GOOGLE'S COUNTERCLAIM, I.E., THAT THE DAMAGES CAUSED BY ACTIVITIES ALLEGED IN THE AMENDED COMPLAINT FAR EXCEED ANY BENEFIT TO PERFECT 10 FROM GOOGLE." OKAY. SO, EVERY INFRINGEMENT IS A DAMAGE THAT

EXCEEDS ANY BENEFIT -- WHICH THERE REALLY ISN'T ANY -- THAT GOOGLE PROVIDES TO PERFECT 10. SO, THESE REQUESTS WERE SO BROAD THAT JUST ABOUT EVERYTHING PRODUCED IS RESPONSIVE. THEY'RE IN FOLDERS THAT

ARE LABELED -- FOLDERS AND SUBFOLDERS THAT ARE LABELED AS TO WHAT THEY WERE JUST AS WE SHOWED YOUR HONOR IN COURT. AND IF

THE PRODUCTION IS IN VERY GOOD, UNDERSTANDABLE CONDITION. THEY WOULD LOOK AT -- IF THEY LOOK AT WHAT FOLDERS THINGS FALL INTO.

YOUR HONOR, I REMEMBER WHEN DOCUMENTS WERE IN PAPER AND THE WAY A PRODUCTION COULD BE DONE IS THE WE

PRODUCING PARTY WOULD TELL THE REQUESTING PARTY, OKAY. HAVE THE DOCUMENTS OVER AT OUR OFFICE. INSPECT AND COPY.

YOU CAN COME OVER AND

SO, THE REQUESTING PARTY SENDS OVER THEIR COPY IF THEY WANT THEM BATES NUMBERED, THE COPY SERVICE

17 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 SOMEHOW. AT THE SAME TIME OR AFTER IT COPIES THEM PUTS THE BATES NUMBER ON THERE. I DON'T KNOW HOW THIS WHOLE THING GOT TURNED AROUND WE HAVE TO BATES NUMBER FOR THEM. IT'S SOMETHING

THAT THEY WANT.

AND IF THEY WANT IT DONE, THEY SHOULD DO IT. WE PRODUCED MILLIONS OF

WE PRODUCED THE DOCUMENTS.

DOCUMENTS, WHICH IS A COMPLETE OPPOSITE OF WHAT THEY'VE DONE, WHICH IS NOT PRODUCE ANYTHING BASICALLY, ESPECIALLY AMAZON. AND NOW WE'RE GETTING STUCK WITH WE HAVE TO DO SOMETHING THAT THE FEDERAL RULES NEVER EVEN CONTEMPLATED. THEY WANT SOMETHING DONE, IF THEY WANT THE PRODUCTION ARRANGED A DIFFERENT WAY THAN WE GAVE IT TO THEM, IF THEY WANT OTHER WORK DONE WITH THESE DOCUMENTS, THAT IS THEIR BURDEN. IT. ONE THING, YOUR HONOR, IN THE SEPTEMBER 22 HEARING YOU SAID YOU ORDERED THEM TO DO THE STAMPING. YOU SHOULD GO BACK TO THAT. AND I THINK IF THEY WANT THE DOCUMENTS NUMBERED, LET THEM NUMBER IF

IF THEY WANT THESE THINGS

NUMBERED, THAT'S THEIR CHOICE AND THEIR BURDEN. THE COURT: WELL, AT A MINIMUM I WOULD WANT TO KNOW

THAT THE DOCUMENTS WERE SEGREGATED AS RESPONSIVE TO CERTAIN REQUESTS. MS. KASSABIAN: MR. MAUSNER: YOUR HONOR --

YOUR HONOR, THE FEDERAL RULES SAY

THAT THEY CAN EITHER BE PRODUCED IN THE MANNER IN WHICH THEY

18 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 SECOND? THE COURT: DR. ZADA: THE COURT: NO. PARDON? NO. WELL, THERE'S NO -- THE EVIDENCE IS DISK. DR. ZADA: BUT, YOUR HONOR, CAN I SPEAK FOR A ARE KEPT BY THE PRODUCING PARTY -THE COURT: WHICH THEY HAVE NOT BEEN HERE. YES, THEY HAVE. I MEAN, I CAN

MR. MAUSNER: THE COURT:

NO, THEY HAVE NOT.

UNDERSTAND WHY PERFECT 10 THINKS -MR. MAUSNER: THE COURT: THOSE FILES --

-- BUT IT'S NOT.

MR. MAUSNER: -- KEPT AT PERFECT 10. THE COURT: WHAT? THE FILES THAT WE PRODUCED ARE

MR. MAUSNER:

EXACTLY AS THEY ARE AT PERFECT 10. THE COURT: BUT THEY'RE ALL JUMBLED TOGETHER ON ONE

MR. MAUSNER:

THAT THE RESPONSIVE DOCUMENTS WERE COPIED FROM PERFECT 10'S COMPUTERS ONTO A DISK IN THE FILES THAT THEY'RE IN ON PERFECT 10'S COMPUTERS. THE COURT: AND THROWN INTO A DOCUMENT-DUMP DISK SO

THAT NO ONE KNOWS WHAT'S RESPONSIVE TO WHAT. MR. MAUSNER: WHO'S SPEAKING? YOUR HONOR?

19 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 THE COURT: THAT'S ME, YES. WELL, THAT'S JUST NOT THE CASE.

MR. MAUSNER: THE COURT:

WELL, AM I WRONG, MS. KASSABIAN? YES. YOUR HONOR, YOU'RE CORRECT.

MS. KASSABIAN:

AND I ACTUALLY HAVE THE HARD DRIVE UP ON MY SCREEN RIGHT NOW. AND I'M LOOKING AT THE TOP-LEVEL FOLDERS. JUST CALLED "AMAZON." ONE OF THEM IS ONE

ONE OF THEM IS CALLED "GOOGLE."

OF THEM IS CALLED "RAPID SHARE." NET."

ONE OF THEM IS CALLED "USE

IF YOU OPEN SOME OF THESE FOLDERS, THERE ARE MULTIPLE SUBFOLDERS. AND IN ONE INSTANCE I THINK IN THE USE

NET FILE, THERE'S A -- IF YOU GO -- CLICK THROUGH TWO LEVELS OF FOLDERS, THERE ARE 7,600 OBJECTS IN THIS FOLDER THAT ALL APPEAR TO HAVE SOMETHING TO DO WITH USE NET. NONE OF THESE CATEGORIES OR FOLDERS HAVE ANY BEARING ON THE COURT'S ORDER REGARDING SPECIFIC FINANCIALS, LIKE REQUEST 87, "DOCUMENTS REGARDING PROJECTIONS OF SALES, REVENUES AND PROFITS." DESCRIPTION OF THAT. REQUEST 95, "DOCUMENTS SUFFICIENT TO SHOW 25 LARGEST CORPORATE AND BUSINESS CUSTOMERS." INDICATING THAT. SO, YOU'RE RIGHT. IT'S A DUMP. IT'S 18 GIGABITS. THERE'S NO FOLDER THERE'S NO FOLDER FOR THAT OR ANY

IT'S FOLDERS THAT DON'T CORRESPOND TO WHAT YOUR HONOR ORDERED.

20 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 DRIVE. DR. ZADA: THE COURT: WELL, HOW DO YOU KNOW THAT, YOUR HONOR? DO YOU HAVE -- IF DOCUMENTS -- REQUEST DRIVE? THE COURT: NO, I HAVE NOT LOOKED AT THE HARD AND, YOU KNOW, WE'VE GOT A DEPOSITION COMING UP VERY SOON, AND IT WOULD TAKE US MANY, MANY DAYS TO CLICK THROUGH EVERY SINGLE ONE OF THESE HUNDREDS OF THOUSANDS OF FILES TO TRY TO -THE COURT: WELL, THIS TO ME IS MORE URGENT AND

MORE PROBLEMATIC THAN EVEN THE BATES-STAMPING ISSUE. DR. ZADA: THE COURT: MAY I SPEAK, PLEASE? NO.

WHAT I'M SAYING -MR. MAUSNER: THE COURT: ALL RIGHT. MR. MAUSNER: DR. ZADA: RIGHT. I MAY I CONFER WITH DR. ZADA TO -YOU KNOW THIS AS WELL AS HE DOES.

NO.

I PRODUCED THE DOCUMENTS, YOUR HONOR.

KNOW WHAT'S IN THE FOLDERS. THE COURT: DR. ZADA: WHAT IS IN THE FOLDERS IS NOT LABELED. YOUR HONOR, HAVE YOU LOOKED AT THE HARD

NUMBER 60 IS "DOCUMENTS SUFFICIENT TO SHOW THE PERFECT 10 MARKET SHARE." IS THERE A SUBFOLDER ON THE DISK SAYING THESE ARE

21 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 THE UNIVERSE OF DOCUMENTS RESPONSIVE TO DOCUMENT REQUEST NUMBER 60 -- OR 560. DR. ZADA: THE COURT: DR. ZADA: 10'S MARKET SHARE. I HAVE TO SPEAK, YOUR HONOR. BRIEFLY. WE HAVE NO DOCUMENTS TO SHOW PERFECT THE ONLY THING WE HAD WAS WE HAD CURTIS PLEASE.

CIRCULATION DOCUMENTS WHICH ALREADY HAD BEEN PRODUCED TO THE COURT. AND WE HAD OUR FINANCIAL DOCUMENTS WHICH SHOWED THAT

OUR MARKET SHARE WAS VERY LOW. WE DIDN'T HAVE ANY DOCUMENT WHICH SAID THIS IS OUR MARKET SHARE. PRODUCTIONS. AND, SO, THEY'RE CLEARLY MISCONSTRUING OUR AND I THINK WE NEED TO GET AN INDEPENDENT

EXPERT, YOUR HONOR, BECAUSE -- TO EVALUATE OUR PRODUCTIONS VERSUS GOOGLE'S PRODUCTIONS AND AMAZON'S. THE COURT: PRODUCTIONS TODAY. DR. ZADA: THE COURT: BECAUSE I CAN'T --

I'M NOT TALKING ABOUT THEIR DOCUMENT

IT'S JUST -BUT, YOUR HONOR -IT'S NOT BEFORE ME.

DR. ZADA: -- GOOGLE'S DOCUMENT PRODUCTION WAS INFINITELY WORSE THAN OURS. THE COURT: DR. ZADA: THE COURT: DID YOU HEAR ME, DR. ZADA? PARDON? DID YOU HEAR ME JUST NOW? WE'RE NOT

TALKING ABOUT THEIRS TODAY. DR. ZADA:

WE'RE TALKING ABOUT YOURS.

BUT WE NEED AN EXPERT TO GO THROUGH OUR

22 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 HONOR. DOCUMENT PRODUCTION AND TO VERIFY THAT, IN FACT, WE DID A VERY GOOD JOB. I CAN'T SIT HERE AND HAVE THESE PEOPLE MAKE

THESE STATEMENTS WITH NO SUPPORT WHATSOEVER, NO DECLARATIONS, NOTHING. AND YOUR HONOR HASN'T EVEN LOOKED AT THE DRIVE, AND

YOU'RE REACHING A CONCLUSION THAT SOMEHOW OUR DOCUMENT PRODUCTION WAS UNSATISFACTORY. OUR DOCUMENT PRODUCTIONS ARE OUTSTANDING, YOUR AND I'D LIKE TO HAVE AN EXPERT, AN INDEPENDENT EXPERT

HIRED BY THE COURT TO VERIFY THIS. MR. JANSEN: YOUR HONOR, THIS IS MARK JANSEN.

IF I COULD JUST -- I THINK -- IT IS STANDARD AND IT'S APPROPRIATE UNDER THE FEDERAL RULES OF CIVIL PROCEDURE FOR A PARTY THAT PRODUCES DOCUMENTS IN RESPONSE TO DOCUMENT REQUESTS AND, IN PARTICULAR, IN RESPONSE TO ORDERED PRODUCTION OF DOCUMENT REQUESTS TO IDENTIFY WHAT DOCUMENTS ARE BEING PRODUCED THAT ARE RESPONSIVE TO THE PARTICULAR -THE COURT: MR. JANSEN: REQUIRED HERE. THAT'S WHAT I'M TALKING ABOUT. AND I THINK THAT'S WHAT SHOULD BE

AND THERE ARE SOME -- THERE ARE VERY SPECIFIC AND JUST GOING DOWN THE LIST -- JUST

DOCUMENT REQUESTS.

LOOKING AT PAGE 4 OF YOUR ORDER WHERE YOU START LISTING THE DOCUMENT REQUESTS. MS. KASSABIAN MENTIONS SOME. BUT JUST

GOING ON, DOCUMENT REQUEST NUMBER 104 ASKS FOR "DOCUMENTS SUFFICIENT TO SHOW THE FACT OF THE NUMBER OF UNIQUE VISITORS PER MONTH THAT VISIT THE PERFECT 10 WEB SITE AS ALLEGED IN

23 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 THE COMPLAINT." NUMBER 105-DR. ZADA: CAN I RESPOND. THAT WAS --

MR. JANSEN: -- PERFECT 10 HAS SPENT MILLIONS OF DOLLARS ADVERTISING AND PROMOTING ITS MARK. GETTING -DR. ZADA: DOCUMENTS. MR. JANSEN: WELL, WE SHOULD BE GETTING A THAT WAS PRODUCED IN THE FINANCIAL SO, WE SHOULD BE

PRODUCTION OF DOCUMENTS SHOWING WHAT THEY DID TO ADVERTISE AND PROMOTE. AND IF THEY'VE ALREADY PRODUCED IT, THEY SIMPLY NEED TO SAY WHERE THEY PRODUCED IT OR IDEALLY THE NUMBER RANGE OF THE DOCUMENT PRODUCTION. THE COURT: WELL, EVEN PUTTING ASIDE THE NUMBER

RANGE, I WANT TO KNOW FOR THE DEPOSITIONS THAT ALL COUNSEL KNOW THE UNIVERSE OF THE RESPONSES GIVEN TO EACH DOCUMENT PRODUCTION -- EVERY DOCUMENT REQUEST THAT THE COURT ORDERED. THAT IS NOT DIFFICULT, DR. ZADA. DIFFICULT -DR. ZADA: YOUR HONOR, I DIDN'T -- WELL, IT WOULD I THAT IS NOT

NOT BE DIFFICULT SPECIFICALLY IN THE FOLLOWING SENSE.

COULD WRITE A ONE-PAGE DECLARATION TO EXPLAIN WHAT WE DID AND DID NOT HAVE AND WHICH FOLDERS WERE RESPONSIVE TO THOSE REQUESTS.

24 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 THE COURT: WELL, THAT MAY HELP, YES. RATHER THAN A DECLARATION I THINK IT

MR. MAUSNER:

COULD BE DONE IN THE FORM OF A DOCUMENT RESPONSE -DR. ZADA: BUT THE PROBLEM, YOUR HONOR -- AND I

UNDERSTAND YOUR HONOR IS TRYING VERY HARD TO SIFT THROUGH THIS GIGANTIC MESS, BUT THE PROBLEM THAT I'M HAVING IS EVERY TIME WE HAVE ONE OF THESE CONFERENCES, YOUR HONOR, THERE'S ONLY ONE PERSON THAT KNOWS WHAT WAS PRODUCED, AND THAT WAS ME. OKAY. AND IF WE HAD AN INDEPENDENT EXPERT, WE COULD GO

THROUGH AND SEE THAT WHEN GOOGLE PRODUCED THEIR EXCEL SPREADSHEET THEY CORRUPTED IT IN SUCH A WAY THAT IT WAS UNUSABLE. I MEAN, OUR PRODUCTIONS -- AND THEY HAVE 13 COPIES OF THE SAME THINGS. VARIOUS FOLDERS. I ONLY PRODUCED ONE COPY. THEY'RE IN

WE CAN FIND THEM.

AND I WILL BE HAPPY,

YOUR HONOR, IN THIS PARTICULAR INSTANCE TO PROVIDE SOME SORT OF EXPLANATION. BUT I GUARANTEE YOU THEY'RE GOING TO COME

BACK WITH SOME OTHER COMPLAINT WHILE AMAZON HAS PRODUCED A TOTAL OF 800 DOCUMENTS IN THIS WHOLE CASE. THE COURT: I DON'T WANT TO TALK ABOUT THEIR IT'S NOT BEFORE ME, EX PARTE OR SO, MR.

DOCUMENT PRODUCTION NOW. NOTICE. OKAY.

I KNOW YOU'RE ANGRY ABOUT THEM.

MAUSNER KNOWS WHAT TO DO AND HOW TO DO IT TO GET IT TO MY ATTENTION. DR. ZADA: BUT DO YOU WANT TO HAVE -- ON EVERY

25 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 DISCOVERY REQUEST IN THIS CASE, YOUR HONOR? YOU DO. I DON'T THINK

I MEAN, THE PROBLEM IS THEY SYSTEMATICALLY REFUSE TO WE DON'T HAVE THE RESOURCES TO FILE A

ANSWER EVERYTHING.

MOTION TO COMPEL ON -THE COURT: -- YOU'RE JUST NOT ADVANCING -DR. ZADA: -- EVERY DISCOVERY REQUEST. THE COURT: YOU'RE JUST NOT ADVANCING YOUR CAUSE ON OKAY. YOU'RE JUST SLINGING MUD EVEN IF YOU'RE

THE ISSUE THAT'S BEFORE ME.

BACK, AND IT DOESN'T HELP YOUR CAUSE AT ALL. RIGHT. EVEN IF YOU'RE RIGHT.

WHAT I WANT -- ASIDE FROM GETTING THE NAME OF A NEUTRAL PERSON AND THE COST TO THE PARTIES IF THE COURT APPOINTS THAT PERSON AS THE BATES-STAMPING EXPERT GURU, ASIDE FROM THAT ISSUE I WANT TO KNOW THAT FOR THE HERSH DEPOSITION I WANT THE FOLLOWING THINGS IN PLACE. I WANT TO KNOW THAT ALL OF THE DOCUMENT PRODUCTION THAT HAS BEEN MADE IN RESPONSE TO MY OCTOBER ORDERS HAVE BEEN IDENTIFIED AS TO FILE FOLDER AND DOCUMENT TYPE -- FILE FOLDER WITH A STATEMENT THAT THESE ARE THE ENTIRE DOCUMENTS THAT ARE RESPONSIVE -- I MEAN, IN TERMS OF SUFFICIENT TO SHOW. ARE THE DOCUMENTS THAT HAVE BEEN PRODUCED. THESE

THIS IS THE

FOLDER THEY'RE IN, AND THEY ARE ONES THAT ARE RESPONSIVE TO DOCUMENT PRODUCTION 560 OR 570 OR WHATEVER. BE DONE IMMEDIATELY. MR. MAUSNER: OKAY. LET ME ASK YOUR HONOR. MOST AND THAT HAS TO

26 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 OF THOSE DOCUMENTS -- MOST OF THE 27 CATEGORIES OF DOCUMENTS THAT YOU HAD ORDERED HAD PREVIOUSLY BEEN PRODUCED. WHAT WE CAN DO IS WE COULD TAKE THIS LAST PRODUCTION, AND WE CAN SAY WHERE THE DOCUMENTS -- IF ANY ADDITIONAL DOCUMENTS WERE PRODUCED WHERE THEY ARE IN THIS LAST PRODUCTION. NOW IS THAT -- IF THERE WERE ANY. SUFFICIENT? THE COURT: I -- WELL, LET ME HEAR -YOUR HONOR, OF COURSE THAT'S NOT IF YOUR HONOR ORDERED NOW, IS THAT

MS. KASSABIAN: SUFFICIENT.

THIS IS RACHEL KASSABIAN.

PRODUCTION OF DOCUMENTS, AND PERFECT 10 IS CLAIMING THAT THEY HAD ALREADY PRODUCED THEM, BUT SIMPLY NOT IDENTIFIED WHERE THEY WERE TO US WHEN THE MOTION WAS PENDING, THEN, THEY NEED TO IDENTIFY WHERE THOSE DOCUMENTS ARE NOW. IT DOESN'T MATTER WHEN THEY WERE PRODUCED. OF THE RESPONSIVE DOCUMENTS WERE PRODUCED IN A PRIOR PRODUCTION, LIKE YOUR HONOR HAS SAID, WE NEED TO HAVE THOSE DOCUMENTS FOR THE HERSH DEPOSITION. PLAYING GAMES HERE. WE DON'T NEED TO BE IF SOME

PERFECT 10 SHOULD IDENTIFY EXACTLY WHERE

THE RESPONSIVE DOCUMENTS -THE COURT: ALL RIGHT. OKAY. SO, LET ME --

MR. MAUSNER:

THAT'S GOING TO TAKE --

DR. ZADA: -- IMPOSSIBLE THING. MR. MAUSNER: THAT'S GOING TO TAKE A VERY LONG

27 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 TIME. WE CAN DO IT IN THE CURRENT PRODUCTION. AND THE ONLY

THING YOUR HONOR ORDERED FOR THE CURRENT PRODUCTION WAS DOCUMENTS THAT HAD NOT PREVIOUSLY BEEN PRODUCED. THE COURT: SO --

BUT IT CAN'T BE THAT DIFFICULT TO SAY

WE ALSO PRODUCED DOCUMENTS IN AUGUST OR JULY OR WHATEVER, AND THOSE -- THIS IS WHERE THEY ARE. THEY'RE ON THIS DISK, AND

THEY ARE RESPONSIVE TO THESE REQUESTS. DR. ZADA: I THINK IT'S WAY -- YOU'RE TALKING ABOUT WE PRODUCED 5

HUNDREDS OF THOUSANDS OF FILES, YOUR HONOR. MILLION PAGES OF DOCUMENTS IN THIS CASE. PRODUCED NEXT TO NOTHING.

THE DEFENDANTS HAVE

WE ARE BEING PENALIZED BY

RESPONDING TO COURT ORDERS AND ENGAGING IN DISCOVERY IN GOOD FAITH. AND THERE'S NO REASON FOR THIS, YOUR HONOR. MOST

OF THOSE REQUESTS THAT THEY GAVE ARE COVERED IN THE FINANCIAL DOCUMENTS. THE ANSWER TO MOST OF THE REQUESTS ARE THEY'RE IN

THE FINANCIAL DOCUMENTS. WE DON'T HAVE A LIST OF THE 25 LARGEST CUSTOMERS. THE ONLY THING THAT COMES CLOSE TO THAT IS ALL THE CURTIS DOCUMENTS THAT WE MADE AVAILABLE TO THE COURT FOR COPYING SEVERAL YEARS AGO. SO, I DON'T KNOW WHERE -- YOU KNOW, I THEY WERE IN THE

CAN'T TELL YOU WHICH BIN THEY WERE IN NOW. PHOTO STUDIO THREE OR FOUR YEARS AGO.

WE DON'T HAVE THE -- WE DON'T HAVE -- I MEAN, BASICALLY WHAT I DID, YOUR HONOR -- AND THAT'S WHY I FIND

28 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 HONOR. DON'T. DR. ZADA: BUT, YOU KNOW, THIS SHOULD BE A THEY NEVER THIS SO OBJECTIONABLE IS I'M NOT EVEN BEING GIVEN A CHANCE TO EXPLAIN WHAT I PRODUCED. I PRODUCED CONTRACTS THAT I FOUND. I PRODUCED A FEW CURTIS

I WENT AND FOUND MORE CONTRACTS. DOCUMENTS THAT I DISCOVERED.

BUT MOST OF THE STUFF THAT WAS

PRODUCED WERE ADDITIONAL INFRINGEMENTS BECAUSE THAT'S THE ONLY THING THAT HADN'T BEEN PRODUCED ALREADY. ELSE HAS BEEN PRODUCED. FINANCIAL DOCUMENTS. EVERYTHING

AND ALMOST EVERYTHING IS IN THE

ALMOST EVERY RESPONSE TO THEIR REQUEST

IS IN THE FINANCIAL DOCUMENTS. MS. KASSABIAN: KASSABIAN. AND, YOUR HONOR, THIS IS MS.

OF COURSE IF PERFECT 10 WAS ABLE TO VERIFY THAT

IT HAD ALREADY PRODUCED RESPONSIVE DOCUMENTS, THEN, IT KNOWS WHERE THOSE DOCUMENTS ARE AND SHOULD LET US KNOW. DR. ZADA: THOUSANDS OF FILES. THE COURT: YEAH, BUT THERE ARE HUNDREDS OF I MEAN, WHAT IS -ALL RIGHT. THAT JUST MAKES OUR POINT, YOUR

MS. KASSABIAN:

PERFECT 10 KNOWS WHERE TO FIND THESE THINGS, AND WE

DUPLICATIVE -- A RECIPROCAL THING, YOUR HONOR. TOLD US WHERE ANYTHING THEY PRODUCED WAS. PRODUCED IT.

THEY NEVER

THEY WERE ORDERED TO PRODUCE -ALL RIGHT. THIS IS WHAT --

THE COURT:

DR. ZADA: -- NEVER EVEN PRODUCED IT.

29 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 CLARIFY. THE COURT: YES. AS I MENTIONED, SOME OF THESE THE COURT: THIS IS WHAT I'M ORDERING FOR TODAY.

I'VE ALREADY MADE MY RULING AS TO THE RECENT DOCUMENT PRODUCTION IN RESPONSE TO MY RECENT ORDERS. I'VE ALREADY SAID WHAT PERFECT 10 NEEDS TO DO. EVERYONE UNDERSTANDS THAT? MR. MAUSNER: OKAY. YOU WANT AN IDENTIFICATION OF AND

THE FILE FOLDER FOR EACH OF THE 20- -- FILE FOLDER OR FOLDERS FOR EACH OF THE 27 REQUESTS. THE COURT: RESPONSIVE TO. MS. KASSABIAN: AND, YOUR HONOR, IF I COULD JUST AND WHICH DOCUMENT REQUEST THEY ARE

MS. KASSABIAN:

FOLDERS CAN BE IN ADDITIONAL -- MANY ADDITIONAL FOLDERS AND THEN ADDITIONAL FOLDERS AND SUBFOLDERS AND SUBFOLDERS WITHIN THAT. SO, I ASSUME THAT THEY'RE GOING TO HAVE TO IDENTIFY THE ACTUAL, YOU KNOW, FILE PATH OR LOCATION OF THE RESPONSIVE DOCUMENTS. BECAUSE IF THEY JUST IDENTIFY A TOP-LEVEL FOLDER,

THERE COULD BE MANY THOUSANDS OF DOCUMENTS WITHIN THAT TOP-LEVEL FOLDER. THE COURT: WELL, AT THIS POINT I THINK I CAN ONLY

REASONABLY -- WITH THIS URGENCY I CAN ORDER THEM TO IDENTIFY THE FOLDERS AND SUBFOLDERS THAT ARE RESPONSIVE TO SPECIFIC DOCUMENT REQUESTS THAT HAVE BEEN ORDERED --

30 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 IT -DR. ZADA: GOING THROUGH -DR. ZADA: -- ONE FOLDER AND ONE SUBFOLDER LEVEL. THE SUBFOLDER LEVEL OF THE MAIN FOLDER AND STOP THERE. BECAUSE OTHERWISE THIS IS GOING TO GET VERY PROBLEMATIC, YOUR HONOR. MS. KASSABIAN: DR. ZADA: YOUR HONOR, IF THERE ARE --

FOLDER AND SUBFOLDER. IF THERE ARE FIVE LEVELS OF

MS. KASSABIAN:

SUBFOLDERS AND THE RESPONSIVE DOCUMENTS ARE IN THE BOTTOM LEVEL SUBFOLDER, THEN, THAT'S WHAT WE NEED TO KNOW. MR. MAUSNER: MR. JANSEN: I DON'T -YOUR HONOR, THIS IS MARK JANSEN. I

THINK -- WE HEAR DR. ZADA SAYING ON THE ONE HAND THAT IT'S VERY EASY TO FIND DOCUMENTS IN THE WAY HE'S GOT THE DOCUMENTS ORGANIZED. MR. MAUSNER: BUT THE PROBLEM --

MR. JANSEN: -- TOO COMPLICATED AND BURDENSOME TO DO

MR. JANSEN: -- THE INTERESTING THING HERE, YOUR HONOR, IS THAT WE TOOK THE DEPOSITION OF AN EMPLOYEE AT PERFECT 10 NAMED SHEENA CHOU. WE STARTED IT. WE DIDN'T

FINISH IT -- ABOUT TWO WEEKS AGO.

I JUST GOT THE TRANSCRIPT BUT ONE

BACK TODAY, AND I HAVEN'T HAD A CHANCE TO READ IT.

THING I RECALL HER SAYING DURING THE DEPOSITION WAS THE ONLY PERSON WHO UNDERSTANDS HOW THE DOCUMENTS ARE KEPT AT PERFECT

31 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 10 IS DR. ZADA. AND IF SHE NEEDS TO FIND THINGS SHE HAS TO

GO TO DR. ZADA BECAUSE HE UNDERSTANDS HOW THINGS ARE KEPT. MS. KINCAID: MR. JANSEN: HUGE DISADVANTAGE. YOUR HONOR, THIS IS VALERIE -THIS IS ONE THING THAT PUTS US AT A

AND THAT'S WHY I THINK WE NEED TO HAVE --

YOU KNOW, SINCE HE'S ABLE TO -- THE ONLY ONE WHO KNOWS WHERE THE DOCUMENTS ARE APPARENTLY, ONLY PERFECT 10 KNOWS WHERE THE DOCUMENTS ARE AND DR. ZADA IN PARTICULAR, WE NEED TO HAVE AN IDENTIFICATION OF WHERE THE RESPONSIVE DOCUMENTS TO THESE FINANCIAL ISSUES HAVE BEEN PRODUCED BOTH RECENTLY AND IN THE PAST. AND ON THAT LINE A VERY TROUBLING COMMENT JUST GOT MADE BY DR. ZADA. I HAVE NO IDEA WHAT HE'S TALKING ABOUT.

BUT HE REFERRED TO SOMETHING CALLED A CURTIS DOCUMENT, AND HE REFERRED TO SOME DOCUMENTS WERE MADE AVAILABLE SEVERAL YEARS AGO. I HAVE NO IDEA WHAT HE'S TALKING ABOUT, BUT NO DOCUMENTS HAVE BEEN MADE AVAILABLE TO AMAZON SEVERAL YEARS AGO. MR. MAUSNER: THAT'S NOT TRUE AT ALL.

MR. JANSEN: -- THAT HE SEEMS TO BE REFERRING TO SOME SORT OF DOCUMENT PRODUCTION, LIKE A HARD COPY DOCUMENT PRODUCTION, AND NO SUCH DOCUMENT PRODUCTION WAS EVER MADE AVAILABLE TO AMAZON.COM OR ALEXA. MR. MAUSNER: OKAY. YOUR HONOR, CAN WE DEAL WITH

32 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 THIS ISSUE BECAUSE IT KEEPS COMING UP. THERE WAS A

PRODUCTION AT PERFECT 10 WHERE PERFECT 10 MADE THOUSANDS OF DOCUMENTS AVAILABLE IN ITS PHOTO STUDIO AND JUST, YOU KNOW, PUT THEM THERE. DOCUMENTS. AND GOOGLE CAME DOWN AND COPIED THOSE

GOOGLE HAS A COPY OF THOSE DOCUMENTS.

I KEEP ASKING MR. JANSEN -- WHO WAS ALSO WELCOME TO COME DOWN IF HE WANTED BUT DIDN'T -- TO GET A COPY OF THAT FROM GOOGLE. NOW, MR. JANSEN, HAVE YOU ASKED GOOGLE FOR A COPY OF THOSE DOCUMENTS? MR. JANSEN: A RESPONSE. YOUR HONOR, LET ME RESPOND IF YOU WANT

DISCOVERY WAS STAYED COMPLETELY BY JUDGE MATZ AS

TO AMAZON.COM FOR APPROXIMATELY A YEAR AFTER JUDGE MATZ HAD DENIED THE PRELIMINARY INJUNCTION REQUEST AGAINST AMAZON.COM AND ITS AFFILIATES IN TOTO. AS TO AMAZON.COM. DURING THAT PERIOD, IT'S TRUE, I GOT A LETTER FROM MR. MAUSNER INDICATING THEY WERE MAKING A VERY LARGE DOCUMENT PRODUCTION AVAILABLE FOR INSPECTION. BUT SINCE DISCOVERY WAS WE THOUGHT THE CASE SO, DISCOVERY WAS STAYED TOTALLY

STAYED AS TO AMAZON, WE DID NOT ATTEND.

MIGHT VERY WELL GO AWAY DEPENDING ON THE NINTH CIRCUIT'S RULING. NOW, THE NINTH CIRCUIT DID NOT -- YOU KNOW, LEFT OPEN A CONTRIBUTORY INFRINGEMENT CLAIM WHICH IS STILL NOW PROCEEDING. BUT DISCOVERY WAS CLOSED WHEN THAT LARGE

33 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 IT. PRODUCTION WAS MADE. AND I'VE ASKED MR. MAUSNER REPEATEDLY THAT IF THERE'S DOCUMENTS THAT ARE RESPONSIVE TO OUTSTANDING DOCUMENT REQUESTS, WE NEED TO HAVE ACCESS TO THEM SO WE CAN INSPECT THEM. GOOGLE AS I UNDERSTAND LOOKED AT SOME DOCUMENTS AND COPIED SOME BUT NOT ALL. AND MR. MAUSNER WON'T EVEN SEND ME COPIES OF HIS CLIENT'S DEPOSITIONS IN PRIOR CASES. I'VE ASKED HIM THAT

SPECIFICALLY FOR HIS CLIENT'S PRIOR DEPOSITION TESTIMONY. MR. MAUSNER: -- ALL MADE AVAILABLE AND GOOGLE COPIED IT. AND I'VE ASKED YOU REPEATEDLY GET IT FROM GOOGLE.

BECAUSE FOR US TO PUT THAT BACK TOGETHER AGAIN WOULD BE VIRTUALLY IMPOSSIBLE FOR US TO KNOW EVERYTHING WE PRODUCED THERE. WHY DON'T YOU JUST ASK GOOGLE FOR A COPY. THE COURT: CAN I ASK AN IMPORTANT QUESTION. WHY

DOES MR. HERSH'S DEPOSITION HAVE TO GO NEXT WEEK OR IN TWO WEEKS? MR. MAUSNER: IT DOESN'T. THERE'S NO EMERGENCY ON IF WE HAVE TO DO

BUT THEN -- WE WOULD BE READY TO GO.

ALL THIS OTHER WORK, I'M NOT SURE -DR. ZADA: YOUR HONOR, THEY'RE COMPLETELY I MEAN, ALL OF THE DOCUMENTS

MISSTATING THE WHOLE THING.

THAT ARE GOING TO BE PRODUCED FOR MR. HERSH'S DEPOSITION ARE THE KEY DOCUMENTS. THERE'S NOTHING ELSE. IT'S ALL FINANCIAL

34 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 DOCUMENTS, AND IT'S THE CURTIS DOCUMENTS THAT WERE MADE AVAILABLE. THERE WAS HUNDREDS OF THOUSANDS OF PAGES. AND AMAZON I I

MEAN, WE FILLED UP THE WHOLE PHOTO STUDIO. DECIDED NOT TO COME BY.

AND GOOGLE HAS A COPY OF IT.

MEAN, YOU KNOW, WE'VE BEEN TRYING -MR. MAUSNER: HOLD ON. LET THEM

CAN WE GET THIS DECIDED NOW, YOUR HONOR? ASK GOOGLE FOR A COPY OF THAT.

AND, THEN, YOU KNOW, I KEEP AND THEY WON'T DO IT.

SAYING JUST GET A COPY FROM GOOGLE.

WHAT POSSIBLE REASON DO THEY HAVE FOR NOT DOING SOMETHING THAT SIMPLE OTHER THAN JUST TO MAKE THINGS DIFFICULT FOR US. MR. JANSEN: WHY IS IT MORE DIFFICULT, YOUR HONOR,

FOR ME TO ASK MR. MAUSNER TO SEND ME A COPY OF HIS CLIENT'S DEPOSITIONS RATHER THAN FOR ME TO ASK GOOGLE. THE COURT: I'M NOT EVEN ADDRESSING THIS. EITHER

WE'RE GOING TO MAKE SOME PROGRESS ON ONE ISSUE I WANTED -- OR I AGREED TO HOLD THIS HEARING ON, OR WE'RE NOT. MS. KASSABIAN: AND, YOUR HONOR -- THIS IS MS.

KASSABIAN. IF I COULD JUST STEP IN, JUST SORT OF COME FULL CIRCLE. WE KEEP HEARING AGAIN FROM DR. ZADA THAT IT'S REALLY SO, I THINK YOU'RE RIGHT THAT

EASY TO FIND THESE DOCUMENTS.

WE JUST NEED AN ORDER THAT PERFECT 10 HAS TO IDENTIFY THE SPECIFIC LOCATION BY FOLDER OR THE LOWEST LEVEL SUBFOLDER OF RESPONSIVE DOCUMENTS TO EACH OF THE 20-ODD REQUESTS THAT YOUR

35 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 HONOR ORDERED ON OCTOBER 6TH. DR. ZADA: IF IT'S THAT EASY -AND THE POINT IS,

IT'S NOT THAT EASY.

FIRST OF ALL, I DON'T EVEN UNDERSTAND -- I MEAN, I CAN GIVE -- I CAN GIVE AN EXPLANATION OF WHERE THINGS ARE, BUT TO START TRYING TO PINPOINT IF THERE -- I DON'T KNOW, ARE WE TALKING ABOUT THE CURRENT PRODUCTION, OR ARE WE TALKING ABOUT EVERYTHING. THE CURRENT PRODUCTION, YOU KNOW, MAYBE THERE'S, I'M GUESSING, 5,000 FOLDERS. THIS STUFF, YOUR HONOR. I MEAN, YOU KNOW, THEY CAN FIND

I MEAN, IF I TELL THEM WHICH FILE --

WHICH FOLDER IT'S IN, DON'T THEY HAVE TO GO THROUGH THE DOCUMENTS THEMSELVES. I MEAN --

MS. KASSABIAN: -- YOUR HONOR, IF DR. ZADA IS SAYING ON THE ONE HAND IT'S EASY AND ON THE ONE HAND IT'S NOT -DR. ZADA: SAYING IT'S -MS. KASSABIAN: DR. ZADA: IF IT'S HARD FOR HIM -I'M NOT SAYING IT'S EASY, RACHEL. I'M

I'M NOT SAYING IT'S EASY. IF IT'S HARD FOR DR. ZADA --

MS. KASSABIAN: DR. ZADA:

THAT'S WHY WE NEED -- THAT'S WHY WE NEED

AN INDEPENDENT EXPERT. MS. KASSABIAN: THE COURT: DR. ZADA -- IF HE COULD PLEASE --

STOP IT.

MS. KASSABIAN: -- ONE AT A TIME. THE COURT: STOP IT.

36 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 DR. ZADA: I MEAN, YOUR HONOR, SOMEBODY INDEPENDENT

NEEDS TO GO THROUGH WHAT WE PRODUCED AND MAKE A REPORT TO THE COURT. AND WE DON'T MIND PAYING FOR HALF OF IT. BECAUSE

RIGHT NOW THEY'RE JUST COMPLETELY MISSTATING WHAT'S BEEN PRODUCED. AND YOU HAVEN'T LOOKED AT IT. AND HOW AM I

SUPPOSED TO CONVINCE YOU THAT I'M TELLING YOU THIS THING WAS PRODUCED IN AN ORGANIZED WAY. THE COURT: MS. KASSABIAN, LET ME ASK YOU THIS.

FOR THE PURPOSE OF MOVING FORWARD, MAY WE ADDRESS ONLY THE RECENT DOCUMENT PRODUCTION, OR DO YOU WANT ME TO MAKE AN ORDER AS TO ALL PRIOR PRODUCTION IN TERMS OF THE HERSH DEPOSITION? MS. KASSABIAN: PRIOR PRODUCTION -THE COURT: OKAY. -- BECAUSE I THINK WHAT I HEARD MR. IT SOUNDS LIKE WE HAVE TO DEAL WITH

MS. KASSABIAN:

MAUSNER AND DR. ZADA SAY ON THIS CALL IS THAT THE VAST MAJORITY OF WHAT YOUR HONOR ORDERED PRODUCED THEY CLAIM TO HAVE ALREADY PRODUCED IT. THE COURT: DR. ZADA: OKAY. IT SEEMS TO ME --

PRODUCED IT IN -WAIT, WAIT.

MR. MAUSNER: THE COURT:

PLEASE BE QUIET.

IT SEEMS TO ME THEN THAT THE BETTER -- THE WISEST COURSE OF ACTION IS TO NOT HAVE HERSH DEPOSED UNTIL THIS GETS

37 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 SATISFACTORILY RESOLVED. AND I AM NOT GOING TO -- I DON'T THINK I CAN REASONABLY EXPECT THAT WHAT I WOULD LIKE TO HAVE DONE AND WHAT GOOGLE WOULD LIKE TO HAVE DONE CAN REASONABLY BE ACCOMPLISHED IN THE MONTH OF NOVEMBER. DR. ZADA: YOUR HONOR -YOUR HONOR, THIS IS MARK JANSEN. I

MR. JANSEN:

THINK IT MAKES SENSE WHAT YOU'RE SUGGESTING.

I THINK THE

HERSH DEPOSITION CAN WAIT UNTIL THE MIDDLE OF DECEMBER, FOR EXAMPLE, OR EVEN POSSIBLY LATER DEPENDING ON -- YOU KNOW, THE COURT STILL HAS NOT RULED ON A PENDING SUMMARY JUDGMENT MOTION. SO, SOME OF THE PRESSURE IS OFF. BUT WE COULD

CERTAINLY PUT IT BACK AT LEAST A MONTH TO, SAY, DECEMBER 19TH OR SO. MR. MAUSNER: YOUR HONOR, IT'S JEFF MAUSNER. HAVE

YOU HEARD ANYTHING AT ALL ABOUT WHEN -THE COURT: NO.

MR. MAUSNER: -- THE COURT IS GOING TO DECIDE THE SUMMARY JUDGMENT MOTIONS? THE COURT: NO. WOULD IT BE POSSIBLE FOR YOU TO

MR. MAUSNER:

INQUIRE OF JUDGE MATZ AS TO THAT -THE COURT: NO. -- SO WE COULD GET SOME -I MEAN, YOU'RE

MR. MAUSNER: THE COURT:

NO, BUT YOU CAN.

38 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 MOTION. PARTE -TO ME. NOW. WELCOME TO -- I DON'T GET INVOLVED IN THOSE ISSUES. MR. MAUSNER: THE COURT: WANT TO ACCOMPLISH. OKAY.

THIS IS WHAT I WANT -- THIS IS WHAT I I WOULD LIKE THE PARTIES TO AGREE TO PUT AND I WOULD SO,

THE HERSH DEPOSITION OVER A MONTH TO TWO MONTHS.

LIKE -- AND I CAN'T IMAGINE THERE WOULD BE AN AGREEMENT.

I WOULD LIKE TWO SEPARATE PROPOSALS AS TO WHAT I SHOULD ORDER REGARDING THE ISSUE OF ORDERING PERFECT 10 TO RESPOND AS TO WHICH FILE FOLDERS, PAST AND PRESENT, ARE RESPONSIVE TO WHICH DOCUMENT REQUESTS THAT EITHER THEY AGREED -- DOCUMENT REQUESTS THEY HAVE EITHER AGREED TO PRODUCE OR THAT THE COURT ORDERED. AND THEN WE'LL -- WE'RE CARVING OUT THE BATES

STAMPING STILL, BUT I WANT -DR. ZADA: THE COURT: DR. ZADA: IS THIS A MUTUAL ORDER WHERE -IT'S --- HAS TO DO IT TOO, YOUR HONOR? I MEAN --

NO, SERIOUSLY. THE COURT:

YOU KNOW, YOU JUST DON'T WANT TO LISTEN IT'S NOT BEFORE ME

I WOULD LOVE IT IF IT WAS MUTUAL.

IT'S NOT BEFORE ME NOW.

IT CERTAINLY SOUNDS LIKE IT

SHOULD BE MUTUAL.

BUT, YOU KNOW, YOU KEEP PUSHING AND

PUSHING AND PUSHING. DR. ZADA: BUT, YOUR HONOR, THIS IS NOT EVEN A THIS IS SOME EX

THEY NEVER EVEN FILED A MOTION.

39 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 QUIET. THE COURT: THAT'S RIGHT.

DR. ZADA: -- BEEN PRESENTED. THE COURT: DR. ZADA: THAT'S RIGHT. AND IT'S AN EX --

WE HAVEN'T HAD A CHANCE TO BRIEF THIS.

WE HAVEN'T HAD A CHANCE TO EXPLAIN TO THE COURT -THE COURT: OKAY. YES, I WOULD LIKE IT IF IT WAS RECIPROCAL. MAKES PERFECT SENSE TO ME. BUT THIS WAS AN EX PARTE. THAT IN THE I GOT RESPONSIVE PAPERS. SO, PLEASE BE

SCHEME OF THINGS THIS IS PROBABLY A LEVEL TWO OR THREE EX PARTE, BUT IT WAS ENOUGH TO GET MY ATTENTION. DOING ANYTHING PRECIPITOUS. AND I'M NOT

BUT I DO WANT TO GET THIS

PROBLEM SOLVED BECAUSE MY TAKE ON IT IS THAT PERFECT 10 DOES NOT PRODUCE DOCUMENTS IN THE NORMAL COURSE OF BUSINESS. MAY HAVE PRODUCED -DR. ZADA: -- WE NEED AN EXPERT. THE COURT: WHAT? IS YOUR ORDER THAT WE -THEY

MR. MAUSNER: THE COURT:

YOU GIVE ME EACH AN ORDER THAT STATES

WHAT THE COURT SHOULD DO IN TERMS OF MAKING SURE THAT THE FILES ARE LABELED AND THAT THEY ARE INDICATED AS RESPONSIVE TO ONE OR MORE SPECIFIC DOCUMENT REQUESTS, EITHER ORDERED OR TURNED OVER VOLUNTARILY. MR. MAUSNER: WE SHOULD DO NOW. OKAY. SO, I'M NOT EXACTLY SURE WHAT

40 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 THE WEEK. MS. KINCAID: TO SUBMIT -THE COURT: YES. I WANT YOU TO EXCHANGE DRAFTS, OKAY. SO, CONCURRENTLY YOU'D LIKE US -MS. KINCAID: I UNDERSTAND. THE COURT: WELL, WHAT -WE TAKE THEIR 27 REQUESTS THAT ARE IN SHOULD WE --

MR. MAUSNER: YOUR ORDER.

WHAT SHOULD WE DO?

THE COURT:

YOU SHOULD SAY, REQUEST NUMBER -- THE

FOLLOWING FOLDER OR FILE FOLDERS ARE RESPONSIVE TO DOCUMENT REQUEST NUMBER 560 AS ORDERED BY THE COURT IN OCTOBER. MS. KINCAID: YOUR HONOR, IT'S VALERIE KINCAID. I

GOT THE IMPRESSION THAT YOU WANT EACH SIDE TO PRESENT TO YOU A PROPOSAL OF SORT OF THE SPECIFICITY WITH WHICH -THE COURT: RIGHT.

MS. KINCAID: -- THIS TASK SHOULD BE DONE? THE COURT: RIGHT. BECAUSE I CAN'T EXPECT ANYONE

THE COURT: -- JOINT PROPOSAL. MS. KINCAID: AND WHEN WOULD YOU LIKE US TO SUBMIT

THE PROPOSAL TO YOUR HONOR BY? THE COURT: WHAT'S TODAY? I THINK BY THE END OF

BUT I DON'T -- I KNOW THAT THIS WILL NEVER BE ONE PROPOSED ORDER. MR. JANSEN: OKAY. SO, WHAT -- YOUR HONOR, THIS IS

41 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 SAY YES. WHAT IS THE RESPONSE TO THAT? MS. KINCAID: MR. JANSEN: I MEAN -OUR RESPONSE, YOUR HONOR, IS THAT WE ABSOLUTELY NOT. MARK JANSEN. SO, WHAT -- I THINK WE CAN SUBMIT FOR YOU A

PROPOSED ORDER BY THE END OF THE DAY TOMORROW OR CERTAINLY BY THURSDAY. THE COURT: OKAY. AND, THEN, GOING BACKWARDS, I

WOULD LIKE PROPOSALS -- AND IT'S HOPEFULLY THE SAME PROPOSAL -- FOR EVERYTHING THAT HAS ALREADY BEEN PRODUCED. SEPARATE VERSIONS OF THAT I GUESS, IF NECESSARY. MS. KINCAID: AND, YOUR HONOR, THIS IS WITH REGARD AND TWO

TO EVERYONE'S PRODUCTIONS, CORRECT? THE COURT: WELL, I'M GIVING IN TO DR. ZADA IF I

HAVE NUMBERED OUR -- THIS IS MARK JANSEN.

THIS ISSUE GOES TO DOCUMENT REQUESTS THAT YOU'VE ISSUED ORDERS COMPELLING PRODUCTION OF. PRODUCTION. AND WE'VE GOTTEN A MASSIVE

AND THE PLAINTIFF HAS JUST SAID ON THE PHONE

THAT HE'S ACTUALLY RELYING ON PRIOR PRODUCTIONS, PRIOR MASSIVE PRODUCTIONS INCLUDING SOME HARD COPY PRODUCTIONS CALLED CURTIS DOCUMENTS. AND I THINK I OUGHT TO KNOW WHAT DOCUMENT THEY CLAIM THEY PRODUCED BOTH CURRENTLY AND IN THE PAST THAT ARE RESPONSIVE TO THESE PARTICULAR REQUESTS. THE COURT: NO, BUT THE QUESTION IS, DO GOOGLE AND

42 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 HONOR -AMAZON ALSO NEED TO DO SOMETHING MORE THAN THEY'VE DONE? MS. KINCAID: YOUR HONOR -AND I THINK YOU'RE RIGHT, YOUR

MS. KASSABIAN:

THIS IS MS. KASSABIAN -- THAT THAT ISSUE, GOOGLE'S

PRODUCTION AND AMAZON'S PRODUCTION IS NOT CURRENTLY BEFORE YOU. IF PERFECT 10 HAS A PROBLEM WITH FINDING SOMETHING IN

ONE OF OUR RESPECTIVE PRODUCTIONS, THEY CAN ASK US, AND WE'LL TELL THEM AS WE'VE DONE IN THE PAST. OUT, THEN, THEY CAN BRING A MOTION. THE COURT: WELL -YOUR HONOR -AND IF WE CAN'T WORK IT

MS. KINCAID: DR. ZADA:

WE'RE BRINGING THE MOTION. YES. WE'RE MAKING AN EX PARTE

MR. MAUSNER: APPLICATION RIGHT NOW. MR. JANSEN: THE COURT:

YOUR HONOR -YOU CAN MAKE AN EX PARTE IF YOU NEED

TO, BUT IT BETTER RELATE TO AN UPCOMING EVENT LIKE THE HERSH DEPOSITION. MS. KASSABIAN: MR. MAUSNER: YOUR HONOR --

HOW ABOUT THEIR PENDING SUMMARY

JUDGMENT MOTIONS WHICH ARE EVEN MORE IMPORTANT THAN THE HERSH DEPOSITION? THE COURT: DON'T THINK THAT -MR. MAUSNER: NO, THEY'RE -WELL, THEY'RE UNDER SUBMISSION. SO, I

43 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 IT. DR. ZADA: ISSUE, YOUR HONOR. -- ASKED FOR SANCTIONS. THIS IS A MAJOR

BECAUSE THEY PRODUCED 1 PERCENT OF ALL THEY PRODUCED SO, WE HAVE

THE URLS LISTED IN THEIR ALLEGED BLOGGER LOG. 1 PERCENT OF THE DOCUMENTS TO US. 1 PERCENT.

MORE OF A BONE TO PICK WITH GOOGLE ON THEIR PRODUCTIONS THAN VICE-VERSA. AND I THINK IT'S ONLY FAIR IF YOU'RE GOING TO MAKE US DO AN ENORMOUS AMOUNT OF WORK HERE, EVEN THOUGH WE PRODUCED VERY ORDERED PRODUCTIONS, THEY SHOULD AT LEAST -THE COURT: THEY'RE NOT ORDERED PRODUCTIONS. STOP

I DON'T KNOW WHAT AMAZON OR GOOGLE'S ARE.

YOURS ARE NOT

WHAT I CONSIDER ORGANIZED. DR. ZADA: OUR PRODUCTIONS. YOUR HONOR, HAVE YOU LOOKED AT ALL OF

YOU'RE TALKING ABOUT 4 OR 5 MILLION PAGES. THEY ARE NOT CATEGORIZED. THEY ARE NOT

THE COURT: SEGREGATED. DR. ZADA: THE COURT:

YOUR HONOR, HAVE YOU LOOKED AT THEM? I'M NOT GOING TO ARGUE WITH YOU. YOUR HONOR, IT'S VALERIE KINCAID. I

MS. KINCAID:

KNOW THAT YOU'RE -- THE BIG GOAL HERE IS WITH REGARD TO UPCOMING DEPOSITIONS. AND THAT'S WHY I THINK THAT WE DO NEED

TO HAVE A PROPOSAL THAT ADDRESSES NOT JUST PERFECT 10 BUT AMAZON AND GOOGLE AS WELL BECAUSE AT RECENT DEPOSITIONS WE'VE HAD PROBLEMS. OF A -AND THERE'S ANOTHER DEPOSITION THAT'S NOTICED

44 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 THE COURT: WELL, LET ME ASK YOU, WHAT IS YOUR TAKE

ON THE MAJOR PROBLEM WITH THEIR PRODUCTION? MS. KINCAID: DR. ZADA: THE COURT: OKAY.

MY TAKE? NO. I THINK HE'S SPEAKING TO ME.

MS. KINCAID: THE COURT:

YES. HERE'S THE PROBLEM, YOUR HONOR. I'LL

MS. KINCAID:

TRY TO QUICKLY ADDRESS IT WITH REGARD TO DEPOSITIONS.

JUST

TAKING ONE, THERE IS A THIRD-PARTY WITNESS TORE KESICKI -ACTUALLY, IT WAS ONLINE CREATIONS, BUT HE WAS THE PERSON MOST KNOWLEDGEABLE, TORE KESICKI. THE EXHIBITS WERE 255 PAGES.

YOU KNOW, SOME WERE EXHIBIT TABS SO IT PROBABLY ENDED UP BEING MORE LIKE 235 PAGES BUT CERTAINLY IN EXCESS OF 200 PAGES OF EXHIBITS. MANY OF THE PAGES OF EXHIBITS WERE NEVER PRODUCED BY GOOGLE, COULD HAVE BEEN PRODUCED BY GOOGLE BUT NEVER PRODUCED BEFORE DOCUMENTS BY GOOGLE. SO, NOT ONLY WERE THEY

NOT BATES NUMBERED, WHICH IS WHAT THEY SEEM TO BE STUCK ON THAT BATES NUMBERING SOLVES ALL PROBLEMS, BUT IN ADDITION THEY HAD NEVER BEEN PRODUCED BEFORE. WELL, OF COURSE THEY'D

SAY THEY CAN'T BE BATES NUMBERED BECAUSE THEY WEREN'T PRODUCED. BUT THAT'S REALLY KIND OF SILLY. THERE WAS NO

REASON THAT THOSE DOCUMENTS COULDN'T HAVE BEEN PRODUCED EARLIER. AND THEY WEREN'T.

45 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 IN ADDITION, THEY USED DOCUMENTS FROM PERFECT 10'S PRODUCTION. THEY KNOW HOW TO DO THE FILE PATH, AND THEY WHEN THERE HAVE BEEN RECENT

DIDN'T DO FILE PATHS FOR IT.

DEPOSITIONS, AND WE'VE USED DOCUMENTS FROM OUR PRODUCTIONS, EVEN THOUGH THERE'S NO COURT ORDER IN PLACE, WE'VE BEEN GIVING THE FILE PATH NUMBERS. AND WHEN I ASKED AT THE VERY LAST DEPOSITION OF -I THINK IT WAS SHEENA CHOU, THEY TOOK OUT A PERFECT 10 DOCUMENT, DIDN'T EVEN SAY IT WAS A PERFECT 10 DOCUMENT. ASKED WHAT IT WAS. I

THEY SAID IT'S A PERFECT 10 DOCUMENT. AND THEY SAID, NO, WE WON'T DO

WILL YOU GIVE THE FILE PATH. IT.

SO, WE HAVE A SITUATION WHERE WHAT'S GOOD FOR US ISN'T GOOD FOR THEM EVEN THOUGH IT'S MUCH SIMPLER FOR THEM. THEY HAVE THESE SMALL PRODUCTIONS BECAUSE THEY DON'T WANT TO PRODUCE THEIR DOCUMENTS. AND, WAIT, THEY'RE BATES NUMBERED,

BUT, YOU KNOW, THEY DON'T WANT TO SAY, WHICH WOULD BE A SUPER SIMPLE TASK, WHICH OF THESE DOCUMENTS KEYS UP TO DIFFERENT DOCUMENT REQUESTS. THEY THINK IT'S OKAY FOR PERFECT 10 TO TAKE 5 MILLION DOCUMENTS AND TAKE HUNDREDS OF REQUESTS, AND FOR EACH REQUEST THEY OKAY THIS DOCUMENT HERE, THIS DOCUMENT HERE, THIS DOCUMENT HERE, BUT THEY DON'T WANT TO DO IT FOR A HUNDRED PAGES OF DOCUMENTS. I MEAN, THAT'S INCREDIBLE.

THAT'S WHY THE PROPOSALS EVEN IF IT'S MUTUAL AND IT

46 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 APPLIES TO BOTH SIDES IT STILL WON'T BE FAIR. THE BURDEN ON

PERFECT 10 IS GOING TO BE -- I CAN ONLY THINK OF THE WORD "INSURMOUNTABLE." THAT'S WHY UNDER THE FEDERAL RULES YOU

CAN EITHER PRODUCE THINGS AS THEY'RE KEPT IN THE COURSE OF BUSINESS, OR YOU CAN MATCH IT UP. AND HERE THEY'RE SAYING YOU HAVE TO MATCH IT UP, AND WE'RE ARGUING, WELL, WAIT, IT'S IN THE COURSE OF BUSINESS. THAT'S WHY, YOUR HONOR, I THINK IT WOULD BE VERY FAIR IF WE COULD SUBMIT PAPERWORK TO YOU, EXPLAIN TO YOU WHY WE BELIEVE THAT IT'S AS THINGS ARE KEPT IN THE COURSE OF BUSINESS, AND MAKE A PROPOSAL THAT APPLIES TO ALL SIDES. THERE IS A DISCOVERY ISSUE THAT CAME UP A COUPLE OF MONTHS AGO. AND WE SPECIFICALLY SAID, CAN YOU PLEASE TELL US

WHICH OF THE DOCUMENTS THAT YOU'VE PRODUCED COVER THESE DIFFERENT INTERROGATORIES. BECAUSE THEY'RE SAYING, WELL, WE WE DON'T HAVE TO ANSWER THESE

PRODUCED RESPONSIVE DOCUMENTS.

INTERROGATORIES, WHICH YOU CAN DO UNDER THE FEDERAL RULES. OKAY. WHICH DOCUMENTS ARE THEY? THEY SAID, YOU KNOW, WE'RE

NOT GOING TO TELL YOU.

THAT'S TOO BURDENSOME, AND WE'RE NOT

GOING TO GO DOWN THAT ROAD. SO, I THINK THE ONLY WAY THAT YOU'LL GET ANY SEMBLANCE OF FAIR PROPOSALS IS WHEN IT APPLIES TO EVERYONE. THAT'S WHY WITH THE FILE PATH WE SAID, WELL, LET IT

47 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 MORE. MS. KASSABIAN: SO, ABOUT ONLINE CREATIONS, YOUR I BELIEVE IT WAS APPLY TO EVERYONE. BECAUSE WHEN IT JUST APPLIES TO ONE SIDE,

PEOPLE AREN'T SO FAIR ABOUT THE PROPOSALS THAT THEY COME UP WITH. MS. KASSABIAN: IF I COULD JUST RESPOND. I BELIEVE YOU JUST ASKED MS. KINCAID TO IDENTIFY WHAT PROBLEMS SHE HAS WITH GOOGLE'S PRODUCTION. SHE DIDN'T SHE YOUR HONOR, THIS IS MS. KASSABIAN.

GIVE YOU A SINGLE EXAMPLE FROM GOOGLE'S PRODUCTION.

POINTED TO GOOGLE USING PERFECT 10 DOCUMENTS AND SHE NOT BEING ABLE TO TELL THAT THEY WERE PERFECT 10 DOCUMENTS BECAUSE, OF COURSE, PERFECT 10 DIDN'T BATES STAMP THEM. WE'RE JUST COMING BACK FULL CIRCLE HERE. DR. ZADA: THE ANSWER IS -YOUR HONOR, I -- YOUR HONOR -WAIT A MINUTE. LET'S LET JUDGE SO,

MS. KINCAID: MR. MAUSNER:

HILLMAN SAY WHAT HE NEEDS TO SAY. THE COURT: I ABSOLUTELY HAVE NOTHING TO SAY. OKAY.

MR. MAUSNER: THE COURT:

LET ME HEAR FROM MS. KASSABIAN A LITTLE

HONOR, I TOOK THAT DEPOSITION IN NEW YORK. IN AUGUST OR SEPTEMBER. ONLINE CREATIONS.

PERFECT 10'S COUNSEL REPRESENTED

WE SERVED THE SUBPOENA ASKING FOR WE GOT VERY LITTLE DOCUMENT PRODUCTION

RESPONSIVE DOCUMENTS.

48 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 QUICKLY. FROM ONLINE CREATIONS' COUNSEL, WHICH WAS THE LAW OFFICES OF JEFF MAUSNER. SO, WE WENT OUT ON TO ONLINE CREATIONS' WEB SITE TO TRY TO LOOK FOR DOCUMENTS THAT HAD TO DO WITH ONLINE CREATIONS. WE PRINTED A FEW DOCUMENTS OUT FROM THEIR PUBLIC

WEB SITE AND ASKED QUESTIONS ABOUT THEM. THOSE COMPONENTS OF THE ONLINE CREATIONS' WEB SITE SHOULD HAVE BEEN PRODUCED BY ONLINE CREATIONS VIA THEIR COUNSEL, THE LAW OFFICES OF JEFF MAUSNER, BUT THEY WERE NOT. AGAIN, GOOGLE HAS NEVER USED ANY GOOGLE-PRODUCED DOCUMENTS THAT WERE NOT CONTROL NUMBERED HERE. SO, WHAT'S

HAPPENING IS PERFECT 10 IS TRYING TO MISH-MASH TEN DIFFERENT ISSUES TOGETHER TO TRY TO GET YOUR ORDER TO NOT ISSUE A RULING. AND WE NEED A RULING, YOUR HONOR. CONTROL OVER PERFECT 10'S PRODUCTION. WE NEED SOME

WE'RE HAPPY TO SUBMIT

A PROPOSED ORDER AS YOU SUGGEST BY THE END OF THE WEEK WITH OUR PROPOSAL AS TO HOW PERFECT 10 NEEDS TO IDENTIFY THINGS IN ITS PRODUCTION. MS. KINCAID: YOUR HONOR, IF I MAY JUST RESPOND

FIRST OF ALL, I DID IDENTIFY A PROBLEM WITH THEY SHOULD HAVE PRODUCED THOSE

GOOGLE'S PRODUCTION.

DOCUMENTS, AND THEY DIDN'T. THE DOCUMENTS THAT THEY'RE SAYING THAT THEY WENT ON THE INTERNET AND GOT, FIRST OF ALL, THEY DIDN'T ASK FOR THEM

49 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 IN THEIR SUBPOENA. AND IN PART THEY DIDN'T ASK FOR THEM

BECAUSE THEY WANTED SOME, QUOTE, ELEMENT OF SURPRISE IN USING THEM. THAT WAS CRYSTAL CLEAR. AND IT'S NOT CONCEIVABLE FOR A SECOND THAT WHEN THEY CAME UP WITH THEM WAS SHORTLY BEFORE HIS DEPOSITION. THEY WANTED AN ELEMENT OF SURPRISE. DOCUMENTS UNDER THE FEDERAL RULES. THEY DIDN'T PRODUCE THE THERE'S NO QUESTION THAT

UNDER RULE 26 THOSE DOCUMENTS SHOULD HAVE BEEN PRODUCED, AND THEY WERE NEVER PRODUCED. OF DOCUMENTS LIKE THAT. SECOND, I NEVER SAID I DIDN'T RECOGNIZE OUR OWN PRODUCTION. IT WAS CLEAR THAT THERE WAS A DOCUMENT FROM THE AND THERE WERE HUNDREDS OF PAGES

PERFECT 10 PRODUCTION USED FOR THE RECENT DEPOSITION. HOWEVER, THEY REFUSED TO GIVE THE FILE PATH NUMBER FOR IT. THAT'S THEIR POSITION. IT'S NOT GOOD FOR US. FILE PATHS. IT'S GOOD FOR PERFECT 10. LET THEM GIVE THE

WE'LL GO TO TRIAL.

WE'RE NOT GIVING FILE PATHS.

LET'S PENALIZE THEM FOR PRODUCING A LARGE VOLUME OF DOCUMENTS WHILE WE PRODUCE A SMALL AMOUNT OF DOCUMENTS. AND

NOT ONLY DO WE PRODUCE A SMALL AMOUNT OF DOCUMENTS, BUT WE DON'T WANT TO TELL YOU HOW THEY'RE RESPONSIVE TO VARIOUS DOCUMENT REQUESTS. AND THE REASON THEY DON'T WANT TO DO IT IS THEY DON'T THINK IT'S REQUIRED BY THE FEDERAL RULES. IT'S NOT REQUIRED BY THE FEDERAL RULES FOR THEM,

50 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 -THE COURT: ALL RIGHT. LET'S FOR NOW -- I'M GOING I'M GOING TO BUT IT'S SOMEHOW REQUIRED BY THE FEDERAL RULES FOR PERFECT 10. THAT SIMPLY ISN'T THE CASE. ALL I'M ASKING FOR, YOUR HONOR, IS THAT WE AT LEAST BE ABLE TO ARGUE TO YOU WHY THESE PROPOSALS HAVE TO APPLY TO BOTH SIDES. THEY SHOW UP TO DEPOSITIONS. THEY USE DOCUMENTS

THAT THEY SHOULD HAVE PRODUCED.

THEY DIDN'T PRODUCE.

THEREFORE, THEY'RE NOT BATES STAMPED. AND THEY ALSO USE PERFECT 10 DOCUMENTS. DON'T WANT TO GIVE ANY FILE PATH INFORMATION. AND THEY

THEY'RE NOT THEY

SAYING THEY CAN'T DO IT, THAT THEY CAN'T FIGURE IT OUT. SIMPLY DON'T WANT TO DO IT.

THEY WANT THE BURDEN TO BE ON PERFECT 10, ONLY ON PERFECT 10, EVEN THOUGH PERFECT 10 HAS DONE A HUGE PRODUCTION OF DOCUMENTS, AND THEY'VE DONE A VERY SMALL PRODUCTION OF DOCUMENTS. MR. MAUSNER: OKAY. LET'S MOVE ON. I THINK WE'VE

-- I'M NOT GOING TO ORDER ANYTHING ELSE TODAY.

ORDER WHAT I SAID REGARDING THE RECENT DOCUMENT PRODUCTION, THE TWO PROPOSED ORDERS BY THE END OF THE WEEK. IS THERE AN AGREEMENT THAT THE HERSH DEPOSITION WILL BE MOVED? MR. MAUSNER: -- OKAY WITH PERFECT 10. THE COURT: WELL, THE OTHER THING I --

51 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 THIS. IF WE CAN PUT THEM INTO ONE OR TWO OR MAYBE THREE ADOBE FILES, AND IF ADOBE CAN BATES STAMP THEM, YOU KNOW, THE WAY THAT RACHEL DESCRIBED FOR AN ADOBE FILE, THEN, WE WILL RIGHT? MR. MAUSNER: WELL, IF THEY'RE HARD COPY, THEY WILL MR. JANSEN: -- TO THAT.

THE COURT: -- WANT TO ORDER TODAY IS THAT HOW MANY DOCUMENTS WILL HERSH INDICATE HE'S RELYING ON FOR HIS DEPOSITION? DR. ZADA: IT'S OVER 2,000. YES. I'M NOT -- IT'S OVER 2,000, BUT

MR. MAUSNER: I CAN'T GIVE -THE COURT:

THESE ARE ALL HARD-COPY DOCUMENTS,

BE SCANNED AND ELECTRONICALLY SENT TO THEM. THE COURT: YOU SAID, RIGHT? MR. MAUSNER: THE COURT: YES. ALL RIGHT. SO, THEY WILL BE STAMPED

OKAY. IT WILL BE ON A DISK. WILL IT BE -- I'M SORRY. DID YOUR

MR. MAUSNER:

MS. KASSABIAN:

HONOR ASK IF IT WAS GOING TO BE BATES STAMPED? THE COURT: DR. ZADA: YES. WELL, I THINK -LET ME ANSWER THIS. LET ME ANSWER

MR. MAUSNER:

52 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 TODAY. ALL RIGHT. SO, I'VE ORDERED TWO THINGS. I'VE STAMP. THE COURT: ALL RIGHT. WE'RE WILLING TO DO IT, AND WE DID BATES STAMP THEM. THE COURT: WELL, IF NOT, YOU'LL PRINT OUT HARD

COPIES AND YOU'LL ADD 2000 BATES STAMPS. MR. MAUSNER: THE COURT: YOU MEAN PHYSICALLY? BIG DEAL. ALL RIGHT. WE WILL BATES

YES.

MR. MAUSNER:

OKAY.

MR. MAUSNER:

IT, YOU KNOW, IN THE CASE OF SHEENA CHOU'S DEPOSITION -DOCUMENTS THAT WE PRODUCED BECAUSE IT COULD BE DONE INEXPENSIVELY AND EASILY. THE ONLY -- WE CAN'T DO IT ON THE ONES THAT ARE, YOU KNOW -THE COURT: ALL RIGHT. WE'RE NOT ANSWERING THAT

ORDERED TWO PROPOSED ORDERS AS TO THE RECENT DOCUMENT PRODUCTION. I'VE ORDERED -- I MADE AN ORDER AS TO THE

DOCUMENTS HERSH WILL RELY ON IN HIS DEPOSITION. IS THERE -- I DIDN'T HEAR FROM GOOGLE OR AMAZON ABOUT THE HERSH DEPOSITION, BUT IS THERE AN AGREEMENT TO PUT IT OVER SOME PERIOD OF TIME? MR. JANSEN: YES, YOUR HONOR. THIS IS MARK JANSEN.

WE NOTICED THE DEPOSITION, AND WE'RE CERTAINLY WILLING TO PUT

53 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 COURT. IT OVER AT LEAST UNTIL -- AT LEAST A MONTH, UNTIL THE MIDDLE OF DECEMBER. THE COURT: MR. JANSEN: THE COURT: MR. ZELLER: APOLOGIZE. HEAR ME. OKAY. YOU KNOW, DECEMBER 19TH OR 20TH. WELL -AND THIS MIKE ZELLER FOR GOOGLE. I

I MAY HAVE BEEN CUT OFF EARLIER, AND YOU COULDN'T

WE'RE AMENABLE -THE COURT: MR. ZELLER: OKAY. -- TO TAKING THE DEPOSITION OFF. WE

PRESUME, HOWEVER, THAT MR. HERSH IS GENERALLY AVAILABLE A MONTH FROM NOW? THE COURT: WELL, I DON'T WANT ANY CHRISTMAS -I DON'T KNOW ON THOSE DATES, BUT I

MR. MAUSNER:

ASSUME THAT THERE WILL BE SOME DAYS THAT HE IS AVAILABLE IN MID TO LATE DECEMBER. MR. ZELLER: THE COURT: WE'RE FINE WITH THAT. ALL RIGHT. AND, THEN, RATHER THAN MY

GETTING OR WAITING FOR ANOTHER EX PARTE AS TO PERFECT 10'S GRIPES WITH AMAZON DOCUMENT PRODUCTION, I THINK WHAT I WOULD LIKE TO DO THERE IS -- I KNOW THIS IS RIDICULOUS, BUT I'D LIKE YOU -- I'D LIKE MS. KINCAID, ACTUALLY, AND MS. KASSABIAN OR -- I GUESS MS. KASSABIAN TO EXHAUST THAT ISSUE. AND, THEN, I THINK WE BETTER HAVE YOU COME BACK TO AND I'LL NEED SOME MAYBE LIKE VISUAL AIDS TO GUIDE ME

54 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 PHONE. THEN. THROUGH THE ISSUE AND SPEND A COUPLE OF HOURS ON THAT AND DO IT WITHOUT ANY PAPERWORK IN ADVANCE. UNDERSTAND ALL THE ISSUES THERE. MS. KASSABIAN: YOU'RE TALKING ABOUT. YOUR HONOR, I'M NOT SURE WHAT I BUT I CAN'T SAY I

JUST TO MAKE SURE I UNDERSTAND.

THOUGHT YOU SAID REGARDING PERFECT 10'S GRIPES WITH AMAZON'S PRODUCTION? DID YOU MEAN -THE COURT: YES. OKAY. SO, THAT WOULDN'T BE ME

MS. KASSABIAN:

YOU MEAN YOU WANT -THE COURT: NOT AMAZON. I MEANT GOOGLE'S

PRODUCTION. MS. KASSABIAN: THE COURT: OH, OKAY.

YES. SO, YOU MEAN THE DOCUMENTS THAT --

MS. KASSABIAN:

THE ISSUES THAT MS. KINCAID AND -THE COURT: RIGHT, RIGHT, RIGHT. I'D LIKE YOU TO

SEE IF THE TWO OF YOU ALONE CAN REACH SOMETHING BETTER THAN WHAT -MS. KASSABIAN: ABSOLUTELY. IF THEY HAVE ISSUES

THEY'D LIKE TO SUBMIT -- TO SEND US AN EMAIL ABOUT, WE'RE HAPPY TO MEET AND CONFER. THE COURT: WELL, MAYBE IT COULD BE DONE OVER THE

BUT IF YOU REACH AN IMPASSE THERE, WHICH IS HIGHLY

55 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 THING? THE COURT: YES. WE MAY NOT BE ABLE TO DISCUSS IT LIKELY, I'D RATHER -- I THINK WE'LL JUST CONVENE SOMETHING HERE IN COURT. MS. KASSABIAN: THE COURT: ABSOLUTELY.

ALL RIGHT. YOUR HONOR, MAY I RAISE ONE OTHER

MR. MAUSNER:

MR. MAUSNER:

TODAY, BUT IT'S SOMETHING THAT'S -- YOU KNOW, IT MAKES IT VERY DIFFICULT FOR US TO OPERATE. UNDER THE PROTECTIVE

ORDER THERE'S CERTAIN ISSUES THAT IT'S NOT CLEAR WHO CAN SEE WHAT. THE FIRST ONE INVOLVES SEAN CHUMURA. ISSUED AN ORDER OCTOBER 20, 2008. AND YOU HAD

AMAZON HAD FILED A

PROTECTIVE ORDER SO THAT YOU COULD NOT SEE CONFIDENTIAL OR HIGHLY CONFIDENTIAL MATERIALS. YOUR HONOR DENIED THAT. AND

THE ORDER WAS ISSUED IN THE GOOGLE CASE. SO, WE WOULD JUST LIKE TO HAVE CLARIFICATION THAT MR. CHUMURA CAN SEE CONFIDENTIAL AND HIGHLY CONFIDENTIAL DOCUMENTS IN BOTH CASES. THE COURT: MR. JANSEN: YOUR HONOR. LIKE FRIDAY. I FORGET WHO HE IS. YOU KNOW, JEFF -- THIS IS MARK JANSEN,

I JUST GOT AN EMAIL FROM JEFF ABOUT THAT ISSUE AND HE AND I HAVE GOT A SCHEDULED MEET AND I DON'T SEE A

CONFER ON A NUMBER OF DISCOVERY ISSUES.

56 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 PROBLEM IN PARTICULAR OF WHAT HE'S SUGGESTING. BUT IT SEEMS

TO ME IT'S JUST A COMPLETE WASTE OF THE COURT'S TIME TO JUST RAISE ISSUES KIND OF A