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)

EXHIBIT A
(Filed Under Seal Pursuant to Protective Order)

EXHIBIT B
(Filed Under Seal Pursuant to Protective Order)

EXHIBIT C
(Filed Under Seal Pursuant to Protective Order)

EXHIBIT D

Margarette Toban
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Wednesday, October 07, 2009 12:35 AM Thomas Nolan Rachel Herrick Kassabian; 'Cahn, Timothy R.' RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Tom, I don't have time to respond to this right now. I will respond after we have resolved everything regarding the discovery orders, produce the documents relating to Bruce Hersh's deposition and complete his deposition, complete the Amy Weber, Nadine Schoenweitz, and Sheena Chou depositions, and produce the documents from the discovery order. In the meantime, please advise me how much additional time you and Amazon believe you should have to complete Ms. Augustine's deposition.

From: Thomas Nolan [mailto:[e-mail]] Sent: Thursday, October 01, 2009 5:13 PM To: Jeffrey Mausner Cc: Rachel Herrick Kassabian; Cahn, Timothy R. Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Jeff, Please provide Perfect 10's final position in response to the attached letter (originally sent September 18, 2009) by the close of business tomorrow, October 2, 2009. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct 213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Thomas Nolan Sent: Friday, September 18, 2009 6:19 PM To: Jeff Mausner Cc: Rachel Herrick Kassabian; Cahn, Timothy R. Subject: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine Jeff,

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Exhibit D, Page 21

Please see the attached. Best Regards, Thomas Nolan Quinn Emanuel Urquhart Oliver & Hedges, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017 Direct: [phone] Main Phone: [phone] Main Fax: [phone] E-mail: [e-mail] Web: www.quinnemanuel.com The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

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Exhibit D, Page 22

EXHIBIT E

Margarette Toban
From: Sent: To: Cc: Subject: Attachments: Thomas Nolan Tuesday, November 24, 2009 5:28 PM 'Jeffrey Mausner' Jansen, Mark T. ; 'Cahn, Timothy R.'; Malutta, Anthony J.; Steiner, Elham F.; Rachel Herrick Kassabian; 'Valerie Kincaid' RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine Reply Ltr. to J. Mausner re. Augustine Deposition.pdf

Jeff, On October 7, you stated that you would respond to our questions regarding Perfect 10's apparent destruction of evidence, defendants' request for additional deposition time with Ms. Augustine, and other issues, after certain events set forth below. Virtually all of these events have come and gone, but we still have yet to receive any substantive response. In the hopes of avoiding motion practice, we're asking one more time that you please provide Perfect 10's final position regarding the issues in Google's September 18 letter (attached) as soon as possible, and in any event by the close of business on December 1, 2009. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct 213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Thomas Nolan Sent: Thursday, October 08, 2009 4:09 PM To: Jeffrey Mausner Cc: Rachel Herrick Kassabian; 'Cahn, Timothy R.' Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Jeff, I am sorry to hear that you are refusing to address any of the issues contained in Google's September 18, 2009 correspondence ­ including important and timesensitive issues pertaining to Perfect 10's apparent destruction of evidence ­ until an unspecified time in early November, despite the fact that Google first raised these issues more than ten weeks ago on August 25, 2009. Accordingly, we will consider the meetandconfer process on these issues completed and will seek relief from the court in due course.
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Exhibit E, Page 23

As for Ms. Augustine's deposition, Amazon and Google believe we can complete our questioning in approximately 5 to 6 hours of testimony time, depending on the scope and extent of objections made during the deposition. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct 213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Jeffrey Mausner [mailto:[e-mail]] Sent: Wednesday, October 07, 2009 12:35 AM To: Thomas Nolan Cc: Rachel Herrick Kassabian; 'Cahn, Timothy R.' Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Tom, I don't have time to respond to this right now. I will respond after we have resolved everything regarding the discovery orders, produce the documents relating to Bruce Hersh's deposition and complete his deposition, complete the Amy Weber, Nadine Schoenweitz, and Sheena Chou depositions, and produce the documents from the discovery order. In the meantime, please advise me how much additional time you and Amazon believe you should have to complete Ms. Augustine's deposition.

From: Thomas Nolan [mailto:[e-mail]] Sent: Thursday, October 01, 2009 5:13 PM To: Jeffrey Mausner Cc: Rachel Herrick Kassabian; Cahn, Timothy R. Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Jeff, Please provide Perfect 10's final position in response to the attached letter (originally sent September 18, 2009) by the close of business tomorrow, October 2, 2009. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct
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Exhibit E, Page 24

213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Thomas Nolan Sent: Friday, September 18, 2009 6:19 PM To: Jeff Mausner Cc: Rachel Herrick Kassabian; Cahn, Timothy R. Subject: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine Jeff, Please see the attached. Best Regards, Thomas Nolan Quinn Emanuel Urquhart Oliver & Hedges, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017 Direct: [phone] Main Phone: [phone] Main Fax: [phone] E-mail: [e-mail] Web: www.quinnemanuel.com The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

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Exhibit E, Page 25

EXHIBIT F

Margarette Toban
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Tuesday, December 01, 2009 2:06 PM Thomas Nolan 'Jansen, Mark T. '; 'Cahn, Timothy R.'; 'Malutta, Anthony J.'; 'Steiner, Elham F.'; Rachel Herrick Kassabian; 'Valerie Kincaid' RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Tom and Rachel: You raise three points in your letter. With regard to your first two points, Perfect 10 does not agree with Google. However, Perfect 10 is still considering your requests. Within two weeks, we will provide a response. I would note, however, that your statement "regarding Perfect 10's apparent destruction of evidence" is false. Perfect 10 has not destroyed any evidence. Other statements that you have made in your correspondence are incorrect as well. With regard to your third point, Perfect 10 does not agree that any defendant has any valid basis for requesting that Ms. Augustine's deposition continue beyond the 7 hours set forth in the FRCP. You knew about this Rule, and should have conducted the deposition accordingly. However, in order to avoid motion practice on this issue, Perfect 10 will offer to make Ms. Augustine available for three (3) additional hours for all defendants so long as defendants agree not to ask for additional time beyond three hours. This offer will remain open for the next two months, unless earlier withdrawn. Jeff.

From: Thomas Nolan [mailto:[e-mail]] Sent: Tuesday, November 24, 2009 5:28 PM To: 'Jeffrey Mausner' Cc: Jansen, Mark T. ; 'Cahn, Timothy R.'; Malutta, Anthony J.; Steiner, Elham F.; Rachel Herrick Kassabian; 'Valerie Kincaid' Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Jeff, On October 7, you stated that you would respond to our questions regarding Perfect 10's apparent destruction of evidence, defendants' request for additional deposition time with Ms. Augustine, and other issues, after certain events set forth below. Virtually all of these events have come and gone, but we still have yet to receive any substantive response. In the hopes of avoiding motion practice, we're asking one more time that you please provide Perfect 10's final position regarding the issues in Google's September 18 letter (attached) as soon as possible, and in any event by the close of business on December 1, 2009. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct
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Exhibit F, Page 26

213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Thomas Nolan Sent: Thursday, October 08, 2009 4:09 PM To: Jeffrey Mausner Cc: Rachel Herrick Kassabian; 'Cahn, Timothy R.' Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

Jeff, I am sorry to hear that you are refusing to address any of the issues contained in Google's September 18, 2009 correspondence ­ including important and timesensitive issues pertaining to Perfect 10's apparent destruction of evidence ­ until an unspecified time in early November, despite the fact that Google first raised these issues more than ten weeks ago on August 25, 2009. Accordingly, we will consider the meetandconfer process on these issues completed and will seek relief from the court in due course. As for Ms. Augustine's deposition, Amazon and Google believe we can complete our questioning in approximately 5 to 6 hours of testimony time, depending on the scope and extent of objections made during the deposition. Best Regards,
Thomas Nolan Associate,

Quinn Emanuel Urquhart Oliver & Hedges LLP. 865 S. Figueroa St 10th Floor Los Angeles, Ca 90017 213-443-3885 Direct 213.443.3000 Main Office Number 213.443.3100 FAX [e-mail] www.quinnemanuel.com
NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.

From: Jeffrey Mausner [mailto:[e-mail]] Sent: Wednesday, October 07, 2009 12:35 AM To: Thomas Nolan Cc: Rachel Herrick Kassabian; 'Cahn, Timothy R.' Subject: RE: Perfect 10, Inc. v. Google Inc.: Deposition of Wendy Augustine

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Exhibit F, Page 27

Tom, I don't have time to respond to this right now. I will respond after we have resolved everyth