Perfect 10 Inc v. Google Inc et al

Filing 662

DECLARATION of JEFFREY N. MAUSNER IN OPPOSITION TO MOTION for Order for Document Preservation to Prevent Further Spoliation of Evidence by Perfect 10, Inc. #654 DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF PERFECT 10'S PORTION OF THE JOINT STIPULATION REGARDING GOOGLE'S MOTION FOR A DOCUMENT PRESERVATION ORDER, AND IN SUPPORT OF PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367 Email: [e-mail] Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, v. Plaintiff, Case No. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) Before Judge Stephen J. Hillman DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF PERFECT 10'S PORTION OF THE JOINT STIPULATION REGARDING GOOGLE'S MOTION FOR A DOCUMENT PRESERVATION ORDER, AND IN SUPPORT OF PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER Exhibits A, B & D Filed Separately Under Seal Pursuant To Protective Order Date: January 11, 2010 Time: 2 P.M. Place: Courtroom 550, Courtroom of the Honorable Stephen J. Hillman Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set
Declaration of Jeffrey N. Mausner in Support of Perfect 10's Portions of the Joint Stipulation Re Google's Motion For A Document Preservation Order And In Support Of Perfect 10's Motion For A Document Preservation Order

GOOGLE INC., a corporation, Defendants.

AND CONSOLIDATED CASE.

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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: I am a member of the State Bar of California and admitted to practice before this Court. I am counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. 2. 3. Many of Ms. Augustine's work related emails are attorney-client On October 21, 2009, defendants took the deposition of Sheena Chou. privileged or constitute work-product. Submitted under seal as Exhibit A is a true and correct copy of portions from the transcript of that deposition. [Pages 18 ­ 46, 77 ­ 105.] 4. In connection with her deposition, Google served a document subpoena on Ms. Chou. She produced approximately 222 pages of emails in response to the document subpoena. Numerous emails were not produced based upon attorney-client privilege and/or work-product. 5. On November 29-30, 2009, Perfect 10 filed a Motion for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or For the Appointment of A Special Master, based upon Google's disobedience of discovery orders. A copy of Perfect 10's Memorandum of Points and Authorities in Support of that motion is submitted under seal as Exhibit B. 6. Upon receiving Google's Joint Stipulation, I asked Google to agree to a preservation order that would apply equally and mutually to both parties, but Google refused to do so. Perfect 10 concurrently notified Google that it would file a motion requesting the same relief Google has sought against Perfect 10, if Google would not so agree. (See email to Rachel Kassabian and other Google attorneys from me, dated December 3, 2009 and email to me from Rachel Kassabian, dated December 3, 2009, true and correct copies of which are attached
-1Declaration of Jeffrey N. Mausner in Support of Perfect 10's Portions of the Joint Stipulation Re Google's Motion For A Document Preservation Order And In Support Of Perfect 10's Motion For A Document Preservation Order

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hereto as the first two pages of Exhibit C.) Almost one week later, Ms. Kassabian wrote to me and identified a few pages in Google's production (GGL 031706 ­ 031708) that address Google's document retention policies. (Exhibit C, first page.) Filed separately under seal as Exhibit D are true and correct copies of pages GGL 031706 - 031708 from Google's document production. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed on December 10, 2009, at Los Angeles County, California. __________________________________ Jeffrey N. Mausner

-2Declaration of Jeffrey N. Mausner in Support of Perfect 10's Portions of the Joint Stipulation Re Google's Motion For A Document Preservation Order And In Support Of Perfect 10's Motion For A Document Preservation Order

Exhibit A
FILED SEPARATELY UNDER SEAL PURSUANT TO PROTECTIVE ORDER

Exhibit B
FILED SEPARATELY UNDER SEAL PURSUANT TO PROTECTIVE ORDER

Exhibit C

Jef frey Mausner
From: Sen t: T o: Cc: Su bject: Rachel Herrick Kassabian [[e-mail]] W ednesday, December 09, 2009 12:29 PM Jef f rey Mausner Thom as Nolan; Valerie Kincaid; [e-mail]; [e-mail]; Timothy Cahn; [e-mail]; Steiner, Elham F.; Michael T Zeller; Andrea P Roberts; Brad R. Love RE: Perfect 10, Inc. v. Google Inc.: Joint Stipulation on Google's Motion for a Document Preservation Order

Jeff, To follow up on my prior email (and to discourage P10 from filing another motion without basis), I wanted to make sure you were aware that Google has already produced documents regarding its document preservation policies. See GGL 031706-031708 (produced on May 1, 2008). If Perfect 10 has some basis for specific concerns regarding any particular document requests or document retention issues, please provide them pursuant to the meet and confer procedures outlined in Local Rule 37-1. Regards,
Rachel Herrick Kassabian | Partner Quinn Emanuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 650.801.5005 Direct 650.801.5000 Main 650.801.5100 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: Rachel Herrick Kassabian Sent: Thursday, December 03, 2009 4:27 PM To: Jeffrey Mausner Cc: Thomas Nolan; Valerie Kincaid; [e-mail]; [e-mail]; Timothy Cahn; [e-mail]; Steiner, Elham F.; Michael T Zeller; Andrea P Roberts; Charles K Verhoeven; Brad R. Love Subject: RE: Perfect 10, Inc. v. Google Inc.: Joint Stipulation on Google's Motion for a Document Preservation Order

Jeff, Unlike Google, the deposition testimony of Perfect 10 s employees has demonstrated that Perfect 10 failed to issue a litigation hold in connection with this action, and is actively destroying documents. Your suggestion that Perfect 10 is willing to stop destroying evidence only if Google enters into some sort of an agreement that is plainly unnecessary for Google is inappropriate. If Perfect 10 has specific concerns about Google s document preservation efforts, you are welcome to raise them through the meet and confer process. You have not done so. In any event, Google has taken all steps necessary to preserve evidence in this case, consistent with the law, and Perfect 10 has no basis for claiming

otherwise.

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Please provide Perfect 10 s portions of the Joint Stipulation within five business days of receiving it. Since you received it before the start of business on December 3, that means Perfect 10 s portions are due December 9. If you need an extra day (until December 10), we would be happy to extend P10 s deadline as a professional courtesy. Regards,
Rachel Herrick Kassabian | Partner Quinn Emanuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 650.801.5005 Direct 650.801.5000 Main 650.801.5100 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: Thursday, December 03, 2009 1:48 PM To: Brad R. Love Cc: Rachel Herrick Kassabian; Thomas Nolan; Valerie Kincaid; [e-mail]; [e-mail]; Timothy Cahn; [e-mail]; Steiner, Elham F.; Michael T Zeller; Andrea P Roberts; Charles K Verhoeven Subject: RE: Perfect 10, Inc. v. Google Inc.: Joint Stipulation on Google's Motion for a Document Preservation Order

Rachel, Perfect 10 received Google's joint stipulation. Perfect 10 is amenable to agreeing upon a preservation order that would apply mutually and equally to Perfect 10 and Google. Please let me know if you are interested by the close of business today. If Google does not want to agree to resolve this dispute as outlined above, then Perfect 10 will file a motion requesting the same relief Google has sought against Perfect 10. Perfect 10 will file the motion and seek the order based upon, inter alia, Google's refusal to respond to the questions in my September 8, 2009 letter (page 2), Google's failure to produce numerous documents (as set forth in Perfect 10's motion for evidentiary sanctions), and the case law Google cites in the joint stipulation. Please call me if you wish to discuss any of this. By the way, Brad Love s email below states that our portion of the Joint Stipulation is due by December 9. We did not receive Google s portions of the Joint Stipulation and supporting exhibits until December 3, so my calculation is that our portions are not due until December 10. Jeff.

From: Brad R. Love [mailto:[e-mail]] Sent: Thursday, December 03, 2009 12:00 AM To: Jeff Mausner
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Cc: Rachel Herrick Kassabian; Thomas Nolan Subject: Perfect 10, Inc. v. Google Inc.: Joint Stipulation on Google's Motion for a Document Preservation Order

Jeff, Attached are Google's portions of the Joint Stipulation on Google Inc.'s Motion for a Document Preservation Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. Because of file size limitations, the supporting Declaration and Exhibits thereto will be attached to several emails to follow. Pursuant to Local Rule 37-2.2, please send us Perfect 10's portions of the Joint Stipulation by December 9. Pursuant to Local Rule 37-2.2, you will then have one business day to sign the document and return it by hand. Best Regards,

Brad Love Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 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
FILED SEPARATELY UNDER SEAL PURSUANT TO PROTECTIVE ORDER