Perfect 10 Inc v. Google Inc et al

Filing 657

JOINT STIPULATION to MOTION for Order for Document Preservation to Prevent Further Spoliation of Evidence by Perfect 10, Inc. #654 Joint Stipulation on Google Inc.'s Motion for a Document Preservation Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. [PUBLIC REDACTED] filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: ( 213 ) 443-3100 Charles K. erhoeven.(Bar No. 170151) charlesverhoeven@ uinnemanuel.com 50 California Street, 2nd Floor San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian quinnemanuei.com 555 Twin Dolphin rive, Suite 560 Redwood Shores, California 94065

9 Attorneys for Defendant GOOGLE INC. 10 .11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 ARM (SHx) Consolidated with Case No. CV 05M3 AHM (SHx)] DISCOVERY MATTER JOINT STIPULATION ON GOOGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE BY PERFECT 10, INC. Hon. Stephen J. Hillman Date: January 11, 2010 Time : 2:00 p.m. Crtrm.: 550 Discovery Cut-off None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

13 PERFECT 10, INC., a California corporation, 14 Plaintf, 15 GOOGLE INC. a corporation; and 17 DOES 1 througA 100 , inclusive, 18 19 AND COUNTERCLAIM 20 21 .22 .23
vs.

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Defendants.

PERFECT 10, INC., a California corporation,
Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 throuA 100, inclusive, 26 27 28
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Defendants.

JOINT STIPULATION ON GOOGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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PRELIMINARY STATEMENTS A. Google's Preliminary Statement

Google Inc. ("Google") brings this motion to address Perfect 10, Inc.'s ("P 1O") apparent destruction of relevant evidence, and to obtain a court order prohibiting any further spoliation. Google learned that P 10 has failed to institute 7 even the most basic of document retention procedures, and worse, has been 8 automatically deleting employee emails on an ongoing basis. P10's email deletion 9 policy likely has resulted in the loss of a significant number of documents relevant 10 to Google's defenses and counterclaims. 11 12 13
Though Google specifically requested production of such documents

14 during discovery, P10 has produced only a handful of emails from Ms. Augustine's 15 account. Further, through third- party discovery Google has obtained important 16 emails sent or received by Ms. Augustine which were not produced by P10. These 17 facts point to the inescapable conclusion that additional relevant emails to or from 18 Ms. Augustine existed at one time, but have been destroyed. 19 During the meet and confer process, P10 refused to respond to Google's

20 requests for information regarding the scope and extent of P10'.s document 21 destruction activities, so it may be that ^P10's employees' work computers

22 (including Dr. Zada's computer) were set to automatically delete emails M. 23 P 10 also has refused to provide Google with assurances that it had or would change 24 the auto-delete settings on its employees' computers to prevent any further 25 destruction of documents. 26 In these circumstances, a document preservation order is both necessary and

27 appropriate. Accordingly, Google asks the Court for an order (1) requiring P10 to 28 identify the scope, duration and extent of its email deletion activities, and any other
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document destruction activities it may have undertaken, and (2) instructing P 10 to

2 immediately take all steps necessary to preserve all documents relevant to this 3 litigation, including modifying its computer settings for all P 10 employees and 4 independent contractors! 5 6 B. P10 ' s Prelimina Statement

[See Declaration of Rachel Herrick Kassabian Regarding Perfect 10,1nc.'s

7 Non-Cooperation Concerning Google Inc.'s Motion for a Document Preservation 8 Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. (Submitted 9 Pursuant to Local Rule 3 7-2.4)] 10 II. 11 12
GOOGLE'S POSITION A. Factual Backiround

Google recently discovered that in the five-year history of this action, P 10

13 apparently has never instructed its employees to preserve documents relevant to this 14 litigation, and worse, has been deleting relevant emails and other documents, on an 15 ongoing basis, for an unknown period of time. 16 17 18 19 20 21 22 23 24 Sanctions likely will be necessary to remedy Perfect 10's spoliation of 26 evidence. Google brings this motion without prejudice to Google's right to seek additional appropriate sanctions when the full extent of Perfect 10's spoliation has 27 been discovered. 28
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2 Declaration of Rachel Herrick Kassabian ("Kassabian Decl."), Ex. H (Augustine Deposition Transcript at 73:21-74:3).

JOINT STIPULATION ON GOOGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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9 10 - Ms. Augustine later submitted an "errata" document to the transcript of 11 her deposition 12 13 Wendy Augustine Deposition Transcript). 14 15 16 17 18 19 20 21 22 Transcript at 41:23-45:5). 23 24 25 26 27 28
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. See id., Ex. G (Signature and Errata to

Kassabian Decl., Ex. I (Chou Deposition

3 Kassabian Decl., Ex. H (Augustine Deposition Transcript at 193:5-194:15).

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I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Kassabian Decl., Ex. I (Chou Deposition Transcript at 41:23-45:5). 25 The full extent of the evidence destruction resulting from P 10's apparent

26 failure to implement any kind of a litigation hold prior to or during this action 27 remains unknown, but the loss of relevant documents critical to Google's defenses 28 and counterclaims appears to 'be significant, because P10 has produced very few
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I company emails in response to Google's document requests. For instance, while 2 Ms. Augustine has been employed by P10 for over seven years (and during the entire period of this litigation), Google's review of P 10's various productions has turned up a total of only approximately 71 emails sent or received by Ms. Augustine.4 Of those 71 emails, 54 are
M. Kassabian Decl. ¶ 17. Thus, P 10 has produced just 17 other email

7 communications to or from Ms. Augustine, for the entire seven-year period of her
employment at P10-which equates to less than 2.5 emails per year of her employment. Id.

This cannot be the totality of Ms. Augustine's relevant emails. At her deposition, Ms. Augustine testified that

Yet P10 produced just 15 emails between Ms. Augustine and other P 10 employees, and of those, 11 emails were copied to third parties. Id., Ex. N. Other than those 11 emails to third parties (which were copied to other P10 employees as well), P 10 produced not a single email between Ms. Augustine's work email account and any third parties

4 In total, it appears that Perfect 10 has produced approximately 1000 emails sent or received by its employees; however, approximately 680 of those emails are and approximately 100 more are Norman Zada's DMCA-related communications with Google employees. Kassabian 26 Decl. ¶ 14. This leaves just 220 P10 employee emails produced to date, despite the fact that the time period in question spans more than ten years, during which P10 27 has employed well over a dozen employees. 28
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2 -. Id., Ex. H (Augustine Deposition Transcript, at 57:23-58:5, 60:6-8, 61:173 19, 103:16-104:5, 123:15-124:12, 255:7-256:21). Nor did P10 produce even a single email between Ms. Chou and Ms. Augustine, despite the fact that they have worked together at P 10 for five years . Id. 114 & Ex. I (Chou Deposition Transcript at 18:1219:1 . In fact, P 10 hasn't produced a single

8 email between Ms. Chou and any other P10 employee. Id. 114. Plainly, relevant 9 emails were destroyed (or otherwise not produced). 10 Setting aside the inferences to be drawn from P10's paltry email production,

11 Google's document subpoenas to third parties have confirmed the deficiencies in 12 P 10's production, by uncovering key emails and other documents sent to or received 13 by P10 employees that P10 has failed to produce. Kassabian Decl. ¶¶ 18-20 and 14 Exs. O (documents produced by Online Creations Inc.), P (documents produced by 15 Nadine Schoenweitz AIKIA Nataskia Maren) & Q (documents produced by Picscout 16 Inc.). These documents concern , among other topics, 17 18 19 .20 Though all of these documents were sent or received by P10 during the

21 pendency of this litigation , P 10 produced none of them. Id. 22 After learning of P10's document destruction activities

23 Google commenced meet and confer, asking P10 to " immediately take whatever 24 steps are necessary to modify the settings on .25 all = Perfect 10 computers to ensure that no _

26 destruction of potentially relevant evidence occurs." Kassabian Decl., Ex. A. P 10 27 failed to substantively respond to Google's request. Id.14, Ex. B. Google further 28
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I asked P10 to disclose the scope and extent of P10's document destruction, 2 including: 3 · How the settings on 4 by whom, and when; 5 · Whether emails on 6 and if so, how many and when; Perfect .10 email account were established,

Perfect 10 email account have been deleted,

7 · The location of any "backup" files for the deleted S emails, including on 8 Perfect 10 computers or servers, or at an off-site location maintained by any Perfect 10 service provider or vendor; · Whether Perfect 10 gave any document preservation instruction to any Perfect 10 employees, contractors, or other personnel regarding this lawsuit, and if so, when; and · Whether the email accounts of any Perfect 10 employees, contractors, or other personnel have ever been set to automatically delete

emails (and if so, who, when and after how long). Kassabian Decl., Exs. A & C. To date, P 10 has not answered any of these questions. Id. ¶ 10, Exs. D, E, & F. Accordingly, Google now seeks the Court's assistance in ordering P10 to disclose the scope, duration and extent of P10's email deletion activities (and any other document destruction activities), and to 20 immediately take all steps necessary to preserve all documents relevant to this 21 22 23 litigation, including modifying its computer settings for all P 10 employees. B. Legal Standard

Litigants have an affirmative obligation to preserve relevant documents in

24 anticipation of--and certainly during-litigation. See, e.g., A. Farber and Partners, 25 Inc. v. Garber, 234 F.R.D. 186, 193 (C.D. Cal. 2006) ("There is no doubt that a 26 litigant has a duty to preserve evidence it knows or should know is relevant to 27 imminent litigation...."); Wm. T. Thompson Co. v. General Nutrition Co Inc.,

28 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) ("While a litigant is under no duty to keep
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or retain every document in its possession once a complaint is filed, it is under a

2 duty to preserve what it knows, or reasonably should know, is relevant in the action, 3 is. reasonably calculated to lead to the discovery of admissible evidence, is 4 reasonably likely to be requested during discovery, and/or is the subject of a pending 5 discovery request."); John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) ("As a 6 general matter, it is beyond question that a party to civil litigation has a duty to 7 preserve relevant information, including ESI [electronically stored information], 8 when that party 'has notice that the evidence is relevant to litigation or ... should 9 have known that the evidence may be relevant to future litigation."' (citing Fujitsu 10 Ltd. v. Fed. Express Corgi., 247 F.3d 423, 436 (2d Cir. 2001) and Zubulake y. UBS II Warburg LLC, 220 F.R.D. 2125 216-18 (S.D.N.Y. 2003)). This obligation attaches

12 "[a]s soon as a potential claim is identified" and it requires litigants "to suspend any 13 existing policies related to deleting or destroying files." In re Napster,Inc. 14 Copyright Liti ation, 462 F. Supp.2d 1060,1067-1070 (N.D. Cal. 2006). 15 A party's failure to preserve evidence once litigation is imminent constitutes

16 spoliation, and "the opposing party may move the court to sanction the party 17 destroying evidence." Id. at 1066; see also Leon v. IPX Sys, Corp., 464 F.3d 951, 18 958 (9th Cir. 2006) (affirming dismissal and award of attorney's fees as sanctions 19 for spoliation). Courts routinely require affidavits describing a party's efforts to 20 locate relevant documents and its knowledge as to any loss or destruction of 21 22 documents. See, e.jg., Buchanan v. Consolidated Stores Co ., 206 F.R.D. 123, 125 (D. Md. 2002) ("Defendant will be ordered to provide an affidavit describing

23 the efforts made to locate documents responsive to requests" for production of 24 documents). 25 Additionally, a court has the authority to issue a document preservation order

26 without any finding of spoliation whatsoever. See RealNetworks Inc. v. DVD 27 Cody Control Association, Inc., Nos. C 08-04548 MHP, C 08-04719 MHP, 2009 28 WL 1258970, at * 10 (N.D. Cal. May 5, 2009) (instructing parties to prepare
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I document preservation order despite a finding that existing preservation policies 2 were "sufficient"). Because a preservation order merely clarifies a litigant's existing duty to preserve relevant documents, they "are common in complex litigations, and are increasingly routine in cases involving electronic evidence, such as e-mails and other forms of electronic communication." Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 136 (Fed. Cl. 2004). Document preservation orders are necessary when "the opposing party has lost or destroyed evidence in the past or has inadequate retention procedures in place." Id., at 13 8. C. Argument
1. P10 Does Not Dispute That It Has Destroyed Documents During The Pendency

Of This Action. P 10 does not dispute that it has deleted emails on a

continuous basis during this litigation . Kassabian Decl., Ex. B. Nor has P10 provided any confirmation that it has modified email settings to

preserve E emails pursuant to Google ' s recent request . Id J¶ 4-10, and Exs. B, D & F. Because P 10 has refused to provide information regarding the scope and extent of this document destruction, Google has every reason to believe that M P 10 employees ' computers were - programmed to delete emails on an ongoing basis. Id. The paucity of P 10's email production suggests that many hundreds or thousands of emails may have been destroyed. Id. ¶¶ 14, 17. Moreover , through third-party discovery Google has obtained several documents that should have been produced by P 10 but were not, suggesting that those documents ( among others) were destroyed pursuant to P 10's email deletion policy. Id. 1118-20 , and Exs. O, P & Q. It makes no difference that P1 O ' s document destruction was the result of an 27 automatic setting Reasonably anticipated

28 litigation imposes an affirmative duty on a party to suspend any document deletion
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or destruction policies. See Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 749 (8th Cir. 2004) (when litigation is imminent or has already commenced, "a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy"); In re Na stet Inc. Co ri ht Litigation, 462 F. Supp.2d at 1070 (failure to suspend document destruction policy

6 and failure to produce relevant employee emails discovered from third parties
7 justified sanctions ). P 10's actions are inexcusable. 2. The Destroyed Documents Were Relevant To This Litigation.

Rather than dispute its destruction of evidence, P 10 insists that all of the emails it has destroyed are not likely to be relevant or discoverable-in other words, "no harm, no foul." Kassabian Decl., Ex. B. As a preliminary matter, P10 has no basis to make this statement, since P 10 does not claim to know which emails it deleted, not does P 10 claim to have reviewed them before deletion. Moreover, P 10 is wrong on the merits-these emails were indeed relevant under the governing legal standards. According to P 10, long-time employee Ms. Augustine is one of its most critical witnesses . She has been extensively involved with P 10's business(es) and operations for more than seven yearsM-

Kassabian Decl., Ex. H (Augustine Deposition Transcript , at 57:23- 58:5, 60:6-8, 61:17-195 72:23-24, 103:16-104:5, 123:15-124:12, 215:,5-11, 255:7-256:21). Ms. Augustine testified at deposition that

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Further, P 10 identified Ms. Augustine in its Rule 26(a) disclosures as an

2 "Assistant to the Publisher" who would be able to "authenticate ... printouts" of alleged infringing images, and who "will be able to testify regarding P 10's copyright applications and registrations." Id., Ex. R (P 10's Updated and Supplemental Disclosures Pursuant to Federal Rule of Civil Procedure 26(a), at 4:15-24). P10 also identified Ms. Augustine as a witness with knowledge of numerous relevant issues, including: · Google's alleged "placing ads next to millions of images without authorization, on websites for which it has received repeated notices of infringement," · Google's alleged continuing "to accept advertising from, and link to, websites for which it has received repeated notices of infringement," · Google's alleged hosting of "websites that it knows infringe copyrights," · Google's alleged ability to " 1) remove all links to all websites controlled by an entity, which would dramatically reduce the traffic to that entity and severely damage its business; 2) refuse to take advertising from an entity; 3) refuse to do business with, or pay, an entity; 4) confiscate monies owed to an entity; 5) enforce the terms of any agreements with an entity," · Google's alleged placement of "thousands of ads next to the images of [P10] models," · Google's alleged design of Web and Image Search results "so that a disproportionate number of its pages of reduced-size images link to websites on which Google places ads and earns revenue," · Google 's alleged publishing "usernamelpassword combinations which allow unauthorized access to thousands of websites," · Google's alleged provision of "thousands of Perfect 10 images available for free to Google users," · Google's alleged use of "Perfect 10's trademarks without authorization for its own commercial gain,"
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· Google's alleged making of "copies of thousands of Perfect 10 images without authorization," and · Google's alleged use of "Perfect i 0's own copyrighted works, without its permissions, to promote itself." Id., Ex. R (P10's Updated Response to Google's 4th Set of Interrogatories). Indeed, P 10 has indicated that it intends to rely on Ms. Augustine to testify at trial regarding authentication of the copyright registrations for P10's image library. Id., Ex. S (9/22/09 Letter from J. Mausner to T. Cahn). Without question, Ms. Augustine is a key witness whose emails meet the relevance standards for purposes of document preservation obligations. Wm. T. Thompson Co., 593 F. Supp. at 1455 (requiring parties to maintain documents "reasonably calculated to lead to the discovery of admissible evidence [or] reasonably likely to be requested during discovery"). Further, third-party discovery has confirmed that specific relevant documents involving Ms. Augustine exist but were not produced by P 10.

Kassabian Decl., Ex. O

OLC email

from W. Augustine). These emails and others like it are vital to Google's defense, because they show critical information which could preclude P 10 from obtaining statutory damages for any infringement 5 Id. The harm P10's email

5 See 17 U.S.C. § 412 ("no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for ... any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work"). 28
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deletion activities have caused Google are demonstrable, not merely hypothetical, as P10 suggests. In any event, P10 was and remains obligated to preserve all materials "reasonably calculated to lead to the discovery of admissible evidence ." Wm. T. Thompson Co., 593 F. Supp. at 1455. P10 cannot just assert by fiat that its failure to uphold its duty to preserve relevant documents in anticipation of litigation was 7 somehow harmless. Indeed, any inferences as to the relevance of the deleted emails 8 are to be drawn against P10. See Leon, 464 F.3d at 959 ("because the relevance of 9 destroyed documents cannot be clearly ascertained because the documents no longer exist, a party can hardly assert any presumption of irrelevance as to the destroyed documents") (citation omitted); Hamilton v. Signature Flight Support Core 2005 WL 3481423, at *6 (N.D. Cal. 2005) ("For purposes of relevance ... courts must take care not to 'hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,' because doing so'would subvert the ... purposes of the adverse inference, and would allow parties who have ... destroyed evidence to profit from that destruction."') (citation omitted); National Ass'n of Radiation Survivors v._Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987) ("Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court must draw the strongest allowable inferences in favor of the aggrieved party."). This is especially true where, as here, P10 appears to have selectively produced emails involving the custodian(s) in question. Specifically, the small handful of emails P10 has produced involving Ms. Augustine pertain to

. Kassabian Decl., Ex. N. This selective retention and production of Ms. Augustine' s emails . 27 underscores the presumed relevance of the deleted emails, and highlights the need 28 for Court intervention. See E*Trade Securities LLC y. Deutsche Bank AG, 230
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1 F.R.D. 582, 589 - 590 (D. Minn. 2005 ) (holding that selective preservation of 2 documents prior to scheduled destruction gives rise to an inference that relevant information was lost and that the destroying party acted in bad faith). There are numerous categories of emails involving Ms. Augustine that one would expect to see in P10's production which are not there , including: · Emails between Ms . Augustine and various third parties regarding Ms. 7 8 9 10 11 12 13 14 · Emails between Ms . Augustine and other P 10 employees and independent 15 16 17 18 19 · Work-related emails with Norman Zada regarding public relations inquiries. 20 21 22 · Emails between Ms. Augustine and P10 part time employee Sheena Choum 23 and contractors coordinating P 10 special events Augustine ' s work selecting images for P 10 to purchase

24 · Emails between Ms . Augustine and other P10 employees identifying 25 26 27 28
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infringements of specific copyrighted works registered by P 10_

JOINT STIPULATION ON GOOGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER

P 10 failed to produce such documents, despite the fact that they are (1) relevant to this case and (2) responsive to numerous of Google's document requests.6 P 10's document destruction involving Ms. Augustine was not harmless. 3. 5 6 7 In addition to the concrete evidence of document destruction pertaining to ork email accoun P10' s Failure To Implement A Document Preservation Protocol Likely Resulted In Document Destruction

- Nor has P10 claimed during meet and confer efforts to have issued such instructions. Id. ¶ 10. Because P10 failed to implement a litigation hold, its document destruction activities likely extended 15 _ to the accounts _ of its current and former officers, employees and 16 independent contractors. 17 The relatively small number of employee emails P10 has produced supports

18 this conclusion. Specifically, for the entire ten-plus year time span in question, P10 19 has produced just 220 emails sent or received by its various employees (not 20 including Dr. Zada's DMCA-

21 related correspondence with Google). Id. 114. Without question P 10 should have 22 produced many more emails than that, regarding such subjects as its magazine 23 business, its website business, its model boxing and television/film ventures, image 24 acquisition efforts, right of publicity acquisitions, image licensing, marketing and 25 26
6 See Kassabian Decl. 1115-16 and Exs. K (Goggle document requests calling for such communications) & L (Augustine subpoena calling for such 27 communications).

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I promotional efforts, and alleged infringements .7 As yet another example,

JW 10 has not produced even a single email between Ms. Chou and either Zada or Augustine- or any other P10 employee, for that matter. KassabianDecl. ¶ 14 & Ex. 1. At a minimum, P 10 should have implemented a litigation hold on these 7 communications when P10 first contemplated suit against Google in 2001. Id.; In re 8 Na ster Inc. Co ri t Litigation, 462 F. Supp. 2d at 1067. Apparently P 10 did not 9 do so. 10 11 through third party discovery Google has confirmed the existence of specific relevant communications that should have been

12 produced by P10, but were not, lending further support to the inescapable 13 conclusion that P10 has destroyed relevant emails. For instance, Google has 14 obtained emails between Dr. Zada and certain models for whom P10 purports to be 15 asserting rights of publicity claims, which P10 never produced in response to 16 Google's document requests. Id., Exs. P (emails from Nadine Schoenweitz A/KJA 17 Nataskia Maren to Dr. Zada produced by Nadine Schoenweitz A/K/A Nataskia 18 Maren) and K (Google document requests calling for communications with models 19 and communications regarding assignments of publicity rights). Many other similar 20 communications relevant to PIO's claims may have been destroyed (or otherwise not 21 produced) as well. 22 23 24 25 26 27 28
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4.

This Court Should Issue A Document Preservation Order And Instruct P10 To Investigate And Disclose The Full Extent Of Its Document Destruction Activities.

7 Google served document requests calling for such communications as early as March 2005. See, e.g., Kassabian Decl., ¶ 15.

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To prevent any further prejudice to Google, Google asks the Court for an 2 immediate order suspending all of P10's document deletion and destruction 3 activities. A document preservation order is necessary and appropriate given that 4 P 10 has previously destroyed evidence and lacks adequate document retention 5 procedures. See Pueblo of Laguna, 60 Fed. Cl. at 138 (granting motion for 6 document preservation order based on evidence of party's previous document 7 destruction). S P 10 should also be ordered to provide a declaration describing the scope and

9 extent of its document deletion activities, including the following:8 10 11 12 13 .14 15 16 17 18 19 20 21 22 23 24 25 8 Once the extent of P 10's document destruction has been discovered, Google 26 reserves its right to seek additional sanctions, including without limitation evidence preclusion, adverse inference instructions, and monetary sanctions. See In re 27
g Na_pster, Inc. Copyright Liti ation, 462 F. Supp.2d at 1078.

· Describe how the settings on established, by whom, and when; · Describe whether emails on

P10 email account were

P10 email account have been

deleted, and if so, how many and during what time period; · Identify the location of any "backup" files for the deleted on P 10 computers or emails, including servers, or at an off-site location maintained by any P 10 service provider or vendor; · Explain whether P 10 gave any document preservation instruction to any P10 employees, contractors, or other personnel regarding this lawsuit, and if so, when and to whom; . · Identify whether the email accounts of any P 10 employees, contractors, or other personnel have ever been set to automatically

delete emails (and if so, who, when and after how long); and

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· Identify any other loss or destruction of documents that has affected the discovery P 10 has provided to Google. Such a declaration is particularly appropriate given P10's failure to meaningfully meet and confer regarding its document destruction. P 10 has refused to confirm whether emails were

systematically deleted during this litigation. Kassabian Decl., Ex. B. P 10 has also 7 refused to provide any information on its document preservation policies or whether 8 archived copies of any of the deleted documents exist. Id. Thus, an affidavit is 9 necessary to determine the scope of P 10's spoliation and the potential means to 10 remedy it. See Buchanan, 206 F.R.D. 123, 125 (D. Md. 2002); Fed. R. Civ. P. II 37(b)(2). 12 III. 13 P10 'S POSITION
[See Declaration of Rachel Herrick Kassabian Regarding Perfect 10, Inc.'s

14 Non-Cooperation Concerning Google Inc.'s Motion for a Document Preservation 15 Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. (Submitted 16 Pursuant to Local Rule 37-2.4)] 17 IV. 18 19 FINAL STATEMENTS A. Goo le's Final Statement and Reg uested Relief

P10 has admittedly destroyed documents, and has failed to implement even

20 the most basic litigation hold, at great prejudice to Google. This Court should issue 21 an order (1) requiring P 10 to identify the scope, duration and extent of its email

22 deletion activities, and any other document destruction activities, and (2) instructing 23 P 10 to immediately take all steps necessary to preserve all documents relevant to 24 this litigation, including modifying its computer settings for all employees and 25 officers to remove any auto-deletion instructions. 26 27
B. P10 ' s Final Statement and Requested Relief

[See Declaration of Rachel Herrick Kassabian Regarding Perfect 10, Inc.'s

28 Non-Cooperation Concerning Google Inc.'s Motion for a Document Preservation
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Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. (Submitted Pursuant to Local Rule 3 7-2.4)]

DATED: December 11, 2009

QUINN EMANUEL URQUHART OLIVER & HEDGES. LLP

6 Rachel Herrick Kassabian (Bar No. 191060) Attornevs for Defendant GOOGLE INC.

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