Perfect 10 Inc v. Google Inc et al

Filing 678

STATEMENT of Defendant Google Inc. Regarding MOTION for Sanctions Against DEFENDANT GOOGLE, INC. - NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER #617 Defendant Google Inc.'s Statement in Response to the Court's December 15, 2009 Order Regarding Plaintiff Perfect 10, Inc.'s Motion for Evidentiary and Other Sanctions and/or for the Appointment of a Special Master filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 678

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 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 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DEFENDANT GOOGLE INC.'S STATEMENT IN RESPONSE TO THE COURT'S DECEMBER 15, 2009 ORDER REGARDING PLAINTIFF PERFECT 10, INC.'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER Hon. A. Howard Matz Date: December 21, 2009 Time: 10:00 a.m. Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

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

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28
01980.51320/3245509.4

Defendants .

GOOGLE INC.'S STATEMENT IN RESPONSE TO THE COURT'S DECEMBER 15, 2009 ORDER Dockets.Justia.com

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In its December 15, 2009 Order (Dkt. No. 675), the Court asks two questions (1) what bearing the

2 about Perfect 10, Inc.'s ("P10") purported "Motion for Evidentiary and Other 3 Sanctions" (Dkt. Nos. 617-630) ("Sanctions Motion"): 5 brought before Magistrate Judge Hillman. 6 Google respectfully submits that the answers are (1) none and (2) it should 7 have been. P10's Sanctions Motion rehashes arguments P10 already made in its 8 oppositions to Google's DMCA Motions and raises a bevy of meritless discovery 9 disputes. Neither is properly raised before this Court, and neither impacts Google's 10 pending DMCA Motions. 11 I. 12 13 P10'S SANCTIONS MOTION HAS NO BEARING ON GOOGLE'S PENDING MOTIONS FOR DMCA SAFE HARBOR. As Google has explained in its Opposition papers (Dkt. No. 647), P10's 4 Sanctions Motion has on other pending motions in the case, and (2) why it was not

14 Sanctions Motion is a discovery motion that improperly retraces old arguments P10 15 already made in opposition to Google's DMCA Motions. Generally speaking, to 16 obtain safe harbor under the DMCA, Google must establish that it meets the relevant 17 statutory prerequisites (e.g., that it established and reasonably implemented a repeat 18 infringer policy) and that it expeditiously processed statutorily compliant notices 19 received from P10 (if any). Google has already made this showing in its DMCA 20 Motions. P10 had a full and fair opportunity to make whatever arguments it wanted 21 in opposition to Google's Motions--and it did, submitting 75 pages of briefing, 11 22 declarations and several hundred pages of exhibits. Briefing on Google's DMCA 23 Motions is closed. 24 Nevertheless, apparently unsatisfied with its DMCA opposition papers filed 25 months ago, P10 now burdens the Court with its Sanctions Motion. Therein, P10 26 rehashes arguments it already made in its DMCA opposition briefs and speculates 27 that there might be other documents that might have been requested and/or 28 compelled that might somehow be relevant to DMCA issues. E.g., Sanctions Mot.
01980.51320/3245509.4

GOOGLE INC.'S STATEMENT IN RESPONSE TO THE COURT'S DECEMBER 15, 2009 ORDER

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1 at 22 ("One can only speculate as to the damning evidence that might be contained 2 in such [unidentified] documents."). Even if dressed up with "new" speculation, 3 P10's reiteration of old arguments in supplemental briefing is in fact an improper 4 sur-reply, filed in derogation of this Court's prior admonishments that P10 refrain 5 from filing sur-replies without leave. See Opp. to Sanctions Mot. at 13 (listing re6 hashed arguments) & n. 14 (summarizing Court's prior admonishments to P10). 7 P10's vitriol and speculation notwithstanding, there is no realistic prospect that the 8 Sanctions Motion will affect the pending DMCA Motions in any meaningful way. 9 II. 10 11 12 P10 SHOULD HAVE RAISED ITS DISCOVERY ISSUES WITH MAGISTRATE JUDGE HILLMAN, AND IN FACT HAS RAISED THEM WITH JUDGE HILLMAN IN RECENT FILINGS. Much of P10's Sanctions Motion raises purported discovery issues and thus

13 should have been brought before Magistrate Judge Hillman. For instance, P10 14 complains about the propriety of Google's responses to document requests, the 15 scope of Judge Hillman's prior discovery orders in 2006 and 2008, redactions in 16 Google's production, and even the format of Google's document production. 17 Sanctions Mot. at 6-15. Indeed, many of its arguments concern recently-served 18 discovery requests on which P10 has not yet even met and conferred or moved to 19 compel. Opp. to Sanctions Mot. at 11:18-24. 20 As Google has shown in its Opposition papers, P10's purported discovery 21 disputes are meritless, because they pertain to documents that were (a) produced 22 (e.g., Google's "DMCA log"), (b) not compelled by any discovery order (e.g., emails 23 related to third-party notices), or (c) never even requested by P10 (e.g., Google's 24 Blogger logs). Id. at 3-11. Regardless, though P10's Sanctions Motion fails to 25 identify any legitimate discovery dispute nor any violation of any discovery order, 26 these matters should have been brought before Judge Hillman in the first instance. 27 In fact, in recent filings P10 actually has raised these same issues with Judge 28 Hillman. See P10's Notice of Mot. and Mot. for a Doc. Preservation Order (Dkt.
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GOOGLE INC.'S STATEMENT IN RESPONSE TO THE COURT'S DECEMBER 15, 2009 ORDER

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1 No. 670) at 2 ("Google has failed to produce critical documents, including emails, 2 which have been ordered produced by both Judge Hillman and Judge Matz."). 3 Plainly, P10 should not be asking two Judges to consider and rule on the same 4 discovery issues at the same time. This Court has delegated discovery matters to 5 Judge Hillman in this case, and he is in the best position to determine initially 6 whether he has ordered something produced, and whether Google has produced it. 7 P10 may argue that it filed its Sanctions Motion with this Court because 8 Magistrate Judge Hillman cannot impose the drastic remedy P10 seeks--namely, 9 evidentiary sanctions that would effectively grant P10 summary judgment on 10 Google's DMCA defense. Setting aside the fact that P10's Sanctions Motion does 11 not even address--let alone satisfy--the standard for awarding evidentiary 12 sanctions, the fact remains that P10 must first resolve all discovery matters with 13 Judge Hillman. If Judge Hillman were to determine that a discovery order violation 14 occurred, Judge Hillman has the power to issue discovery sanctions as appropriate. 15 See, e.g., Grimes v. City and County San Francisco, 951 F.2d 236, 240 (9th Cir. 16 1991) (upholding monetary sanctions award by magistrate judge for discovery 17 violation). Alternatively P10 could use Judge Hillman's determination to pursue 18 whatever dispositive relief it desired with this Court. What P10 cannot do is force 19 this Court to preside over garden-variety discovery disputes merely by dressing up 20 its discovery motion as one for evidentiary sanctions. P10's Sanctions Motion 21 should either be denied outright or referred to Magistrate Judge Hillman and, as 22 discussed in Google's Opposition, P10 should be sanctioned for bringing it. 23 DATED: December 16, 2009 24 25 26 27 28
01980.51320/3245509.4

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By

Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE INC.'S STATEMENT IN RESPONSE TO THE COURT'S DECEMBER 15, 2009 ORDER

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