Perfect 10 Inc v. Google Inc et al

Filing 658

DECLARATION of Rachel Herrick Kassabian in support of MOTION for Order for Document Preservation to Prevent Further Spoliation of Evidence by Perfect 10, Inc. #654 Declaration of Rachel Herrick Kassabian in Support of 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. (Attachments: #1 Exhibits A-K to the Declaration of Rachel Herrick Kassabian [PUBLIC REDACTED], #2 Exhibits L-T to the Declaration of Rachel Herrick Kassabian [PUBLIC REDACTED])(Herrick, Rachel)

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@qumnemanuel. com 50 California Street, 22nd Floor San Francisco ? California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian quinnemanuel.com 555 Twin Dolphin rive, Suite 560 Redwood Shores, California 94065 Attorneys for Defendant Google Inc.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 ARM (SHx) [Consolidated with Case No. CV 05-^ 4753 ARM (SHx)] DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOOGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE BY PERFECT 10, INC.

13 PERFECT 10, INC., a California corporation , 14 Plaintiff, 15 vs. 16 GOOGLE INC. a corporation ; and DOES 1 throuA 100, inclusive , 17 18 19 20 PERFECT 10, INC., a California 21 corporation, 22 23
vs.

Defendants .

AND COUNTERCLAIM

Hon. Stephen J. Hillman
Courtroom.: Hearing Date: Hearing Time: 550 January 11, 2010 2:00 pm

Plaintiff,

Discovery Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set

24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 through 100, inclusive, 26 27
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PUBLIC REDACTED

Defendants.
Case No. CV 04-9484 AHM (SHx ) [Consolidated with Case No. CV 05-4753 AHM (SHx)]
DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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I, Rachel Herrick Kassabian, declare as follows: 1. I am a member of the bar of the State of California and a partner with

Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel for Defendant Google Inc. ("Google") in this action. I make this declaration of my personal and firsthand knowledge and, if called and sworn as a witness, could and would competently testify thereto. 2. On August 18, 2009, I took the deposition of Perfect 10 ("P 10")

employee Wendy Augustine. 9 3. Attached as Exhibit A is a true and correct copy of a letter I sent to

10 P 10's counsel Jeff Mausner dated August 25, 2009, initiating meet and confer II regarding P 10's deletion of emails during the pendency of this litigatio 12 . Among other things, my letter asks P 10 to

13 immediately stop deleting employee emails, and to provide information regarding 14 the scope and extent of P 10's email destruction activities. 15 .4. Attached as Exhibit B is a true and correct copy of P10's September 8,

16 2009 letter responding to my August 25, 2009 correspondence. Among other things, 17 Mr. Mausner states, 18 but otherwise did not provide the

19 information I had asked for regarding the scope and extent of P 10's email 20 destruction. Mr. Mausner's letter also declined to confirm that P10 would 21 immediately 22 further deletion of emails. 23 5. Attached as Exhibit C is a true and correct copy of a letter I sent to Mr. prevent any

24 Mausner dated September 18, 2009, repeating Google's request that P10 stop 25 deleting employee emails and provide information regarding the scope and extent of 26 P10's email destruction activities. 27
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Case No. CV 04-9484 AHM ( SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE' S MOTION FOR A DOCUMENT PRESERVATION ORDER

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6.

On October 7, 2009, Mr. Mausner responded to my September 18, 2009

letter by email, stating, "I don't have time to respond to this right now." Attached as Exhibit D is a true and correct copy of Mr. Mausner's October 7 email. 7. Another month passed with no word from P 10 regarding the document

destruction issues first raised in my August 25, 2009 letter. On November 24, 2009, 6 my colleague Tom Nolan sent P10 an email (with a copy to me) again asking for a 7 substantive response to my August 25 and September 18 letters. Mr. Nolan's email 8 is attached hereto as Exhibit E. 9 8. On December 1, 2009 Mr. Mausner responded, disagreeing with my

10 earlier letters but still refusing to confirm that P10 would stop deleting employee 11 emails, and refusing to provide answers to any of the questions my letters posed 12 regarding the scope and extent of P 10's email deletion activities. Mr. Mausner's 13 December 1 email is attached hereto as Exhibit F. 14 9. On December 2, 2009, I responded to Mr. Mausner's December 1

15 email, explaining that P 10 has had nearly 3 Y2 months to respond to the document 16 destruction issues we raised , and that Google could

17 wait no longer to raise these issues with the Court, especially given the ongoing 18 nature of the document destruction. 19 10. As of the date of this declaration, P10 has not confirmed that P10 has

20 changed the settings on its employees' computers to prevent the automatic deletion 21 of emails, nor has P10 answered any of the questions about P10's document 22 destruction activities contained in my August 25 and September 18, 2009 23 correspondence. 24 11. Attached as Exhibit G is a true and correct copy of the signature page

25 and "errata" submitted by Wendy Augustine in reviewing the transcript of her 26 August 18, 2009 deposition, dated November 6, 2009. 27
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Case No. CV 04-9484 AHM (SHx) [ Consolidated with Case No. CV 05-4753 AHM (SHx)]

DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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12.

Attached as Exhibit H is a true and correct copy of excerpts of the

2 transcript of the August 18, 2009 deposition of P10 employee Wendy Augustine. 3 13. Attached as Exhibit I is a true and correct copy of excerpts of the

4 transcript of the September 9, 2009 deposition of part-time P 10 employee Sheena Chou. 14. Under my direction, paralegals working at my firm have attempted to

locate all of the emails produced by P10 that were sent or received by P 10 employees. In order to locate these documents, we searched P 10's document production for the names of all known P10 employees and all email addresses for those employees that could be ascertained from PI O's document production. These searches disclosed approximately 1000 emails sent or received by P10 employees. Approximately 680 of the emails sent or received by P 10 employees were -

. Attached as Exhibit J is a true and correct copy of two such emails . An

additional approximately 100 of the emails sent or received by P 10 employees were either purported DMCA notices sent to Google or emails between Norm Zada and Google regarding Google's processing of P10's notices. Our searches of P10's document production turned up no emails between P 10 employee Sheena Chou and any other P 10 employee.
15. Google has served dozens of document requests to which various P10

employee emails would be responsive. For instance, in Google's First Set of Requests for Production of Documents dated March 3, 2005, Google requested "[a]ll documents concerning any communications between you and any government agency concerning copyrighted works claimed by you in this action" (Document Request No. 2), "[a]ll documents evidencing assignments or licenses of copyrights

27 claimed by you in this action" (Document Request No. 3), "[a]ll documents
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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE' S MOTION FOR A DOCUMENT PRESERVATION ORDER _4W

concerning communications to persons or entities other than Google in which you have made allegations (against any person or entity) of trademark infringement" (Document Request No. 41), "[a]ll documents concerning the publicity rights 4 claimed by you in this action, including, but not limited to, all licenses, releases, or 5 assignments and all communications relating to such licenses, releases or 6 assignments" (Document Request No. 42), and "[a]ll communications with persons 7 whose publicity rights you claim to own or exercise, other than those 8 communications requested in request number 42" (Document Request No. 50). 9 Similarly, in Google's Fifth Set of Document Requests served April 23, 2007, 10 Google requested "[a] 11 documents constituting, comprising, evidencing, or II reflecting communications concerning the transfer or acquisition of copyright rights 12 for all copyrights claimed by you in this action" (Document Request No. 148), "[a] 11 13 documents constituting, comprising, evidencing, or reflecting communications with 14 Amber Smith, Amy Weber, Aria Giovanni, Irina Voronina, Monika Zsibrita, 15 Nataskia Maren, Sasha Brinkova, Shannon Hobbs, and Talia Harvalik" (Document 16 Request No. 153), "[a]ll documents concerning communications disputing your 17 claim of ownership of any copyright or trademark rights" (Document Request No. 18 160), and "[a]11 documents concerning communications regarding rights claimed by 19 others in names, likenesses, photographs, or other works claimed by you" 20 (Document Request No. 161). Google's Third Set of Document Requests served 21 March 31, 2006 also request "[a]ll documents constituting, comprising, evidencing, 22 reflecting, or referring to communications to, from, or with 4ffir Gutelzon or 23 persons or entities acting on his behalf' (Document Request No. 123) and "[a]11 24 documents constituting, comprising, evidencing, reflecting, or referring to 25 communications to, from, or with PicScout Ltd. or persons or entities acting on its 26 behalf' (Document Request No. 125). Attached hereto as Exhibit K are true and 27 correct copies of excerpts of these document requests.
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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE' S MOTION FOR A DOCUMENT _5_
PRESERVATION ORDER

16.

Google has also served document subpoenas on P 10 employees Wendy

Augustine and Sheena Chou. Attached as Exhibit L is a true and correct copy of Googie's Subpoena for Documents and Testimony to Wendy Augustine dated May 22, 2009. The subpoena requested that Ms. Augustine produce various relevant

5 communications, including "All communications between you and Perfect 10
regarding or relating to any of the Perfect 10 images in suit" and "all communications between you and Perfect 10 regarding or relating to Google or Google services." Attached as Exhibit M is a true and correct copy of Google's Subpoena for the Production of Documents to Sheena Chou dated September 29, 2009. The subpoena requested that Ms. Chou produce various relevant communications, including "[a] 11 communications between you and Perfect 10 regarding or relating to Perfect 10 images being asserted in this action," "[a]11 communications between you and Perfect 10 regarding or relating to Google or Google services," and "[a]ll communications between you and Perfect 10 regarding

15 or relating to Usenet access providers or password-protected websites." .16 17. Under my direction, paralegals at my firm also attempted to locate all

17 of the emails sent or received by Wendy Augustine that P 10 has produced to 18 Google. In order to locate these documents, we searched for the name: "Wendy 19 Augustine" and her PI0 email address: "[e-mail]" in P10's document 20 production. These searches disclosed approximately 71 emails sent or received by 21 Wendy Augustine. Approximately 54 of those emails were 22 . Attached as Exhibit N are true and correct copies of all

23 17 of the remaining emails sent or received by Wendy Augustine that we were able 24 to locate in P 10's document production. 25 18. Attached as Exhibit O is a true and correct copy of an email produced

26 by On Line Creations, Inc. (an adult entertainment company that allegedly assigned 27 certain images to P10) in response to Google's May 21, 2009 subpoena. 01980.51320/3240091.1

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE'S MOTION FOR A DOCUMENT -6PRESERVATION ORDER

Under my direction, paralegals at my firm attempted to locate a copy of this document in P 10's document production, but did 4 not find it. This email is responsive to multiple document requests Google served 5 on P10, including Request Nos. 3 ("All documents evidencing assignments or

6 licenses of copyrights claimed by you in this action"), 148 ("All documents
7 constituting, comprising, evidencing, or reflecting communications concerning the 8 transfer or acquisition of copyright rights for all copyrights claimed by you in this 9 action"), and 161 ("All documents concerning communications regarding rights 10 claimed by others in names, likenesses, photographs, or other works claimed by 11 you"). These document requests are included in Exhibit K. 12 19. Attached as Exhibit P are true and correct copies of emails produced by

13 Nadine Schoenweitz A/K/A Nataskia Maren (a former P 10 model whose publicity 14 rights P 10 claims to be asserting in this case) in response to Google's August 5, 2009 15 subpoena. 16 17 Under my direction, paralegals at my

18 firm attempted to locate these documents in P 10 ' s document production but did not 19 find them. These emails are responsive to multiple document requests Google 20 served on P 10 , including Request Nos . 42 ("Ail documents concerning the publicity 21 rights claimed by you in this action , including , but not limited to, all licenses, 22 releases , or assignments and all communications relating to such licenses , releases 23 or assignments"), 50 ("All communications with persons whose publicity rights you 24 claim to own or exercise, other than those communications requested in request 25 number 42 "), 53 ("All documents concerning communications regarding ownership 26 or control, by others, of publicity rights claimed by you in this case" ), 54 ("All 27 documents concerning your compliance with 18 U.S.C. § 2257 with respect to all
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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DECLARATION OF RACHEL KA.SSABIAN IN SUPPORT OF GOOGLE'S MOTION FOR A DOCUMENT PRESERVATION ORDER _']_

I persons whose names or photographs underlie any of your claims in this action"), 2 and 153 ("All documents constituting, comprising, evidencing, or reflecting communications with Amber Smith, Amy Weber, Aria Giovanni, Irina Voronina, Monika Zsibrita, Nataskia Maren, Sasha Srinkova, Shannon Hobbs, and Talia Harvalik" ). These document requests are included in Exhibit K. 20. Attached as Exhibit Q are true and correct copies of emails produced by

Pic Scout Inc. (an image recognition company that has done work for P10) in response to Google's October 30, 2008 subpoena.

Under my direction, paralegals at my firm attempted to locate copies of
these documents in P 10's document production but did not find them. These emails are responsive to multiple document requests Google served on P10, including Request Nos. 123 ("All documents constituting, comprising, evidencing, reflecting, or referring to communications to, from, or with Offir Gutelzon or persons or entities acting on his behalf'), 125 ("All documents constituting, comprising, evidencing, reflecting, or referring to communications to, from, or with PicScout Ltd. or persons or entities acting on its behalf'), and 159 ("All documents concerning use of image recognition technology to identify potential or actual infringements of your rights on or via the Internet or search engines"). These document requests are included in Exhibit K.

21.

Attached as Exhibit R is a true and correct copy of P10's Updated and

Supplemental Disclosures Pursuant to Federal Rule of Civil Procedure 26(a), dated August 15, 2008, in which P10 identifies Ms. Augustine as a witness with 25 knowledge of various subjects relevant to this case.

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22.

Attached as Exhibit S is a true and correct copy of a letter from P 10's
..S_

27 counsel Jeff Mausner to Amazon.com's counsel Tim Cahn dated September 22, 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOGGLE' S MOTION FOR A DOCUMENT

PRESERVATION ORDER

2009 that I received from Amazon.com's counsel, regarding P10's intention to use Ms. Augustine as a trial witness. 23. Attached as Exhibit T is a true and correct copy of P 10's Updated

Response to Google's Fourth Set of Interrogatories dated May 29, 2009, in which 5 P10 identifies Ms. Augustine as a witness with knowledge of a variety of subjects 6 relevant to this action. 7 I declare under penalty of perjury under the laws of the United States of

8 America that the foregoing is true and correct. Executed December 2, 2009 at San 9 Francisco, California. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Rachel Herrick Kassabian

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Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)]

DECLARATION OF RACHEL KASSABIAN IN SUPPORT OF GOOGLE' S MOTION FOR A DOCUMENT PRESERVATION ORDER