Perfect 10 Inc v. Google Inc et al

Filing 679

NOTICE filed by Defendant and Counterclaimant Google Inc. Google Inc.'s Notice re: Perfect 10, Inc.'s Improperly Filed Joint Stipulation (Attachments: #1 Declaration of Rachel Herrick Kassabian in Support Thereof)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 679 Att. 1

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)] DISCOVERY MATTER Hon. Stephen J. Hillman DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOOGLE INC.'S NOTICE RE: PERFECT 10, INC.'S IMPROPERLY FILED JOINT STIPULATION Date: January 11, 2010 Time: 2:00 p.m. Ctrm: 550 Discovery Cut-off: None Set Pretrial Conference Date: 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 Defendants. 19 20 AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, 22 Plaintiff, 23 vs. 24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 Defendants. 27 28
01980.51320/3246197.1

DECLARATION OF RACHEL HERRICK KASSABIAN
Dockets.Justia.com

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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

3 Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel for Defendant Google Inc. 4 ("Google") in this action. I make this declaration of my personal and firsthand 5 knowledge and, if called and sworn as a witness, could and would testify 6 competently thereto. 7 9 2. 3. I submit this Declaration in support of Google Inc.'s Notice re: Perfect On December 11, 2009, Google filed a Motion for a Document 8 10, Inc.'s Improperly Filed Joint Stipulation, filed concurrently. 10 Preservation Order to Prevent Further Spoliation by Perfect 10 ("Google's 11 Spoliation Motion"). Google had met and conferred with Perfect 10 regarding the 12 issues raised by Google's Spoliation Motion on various dates beginning on August 13 25, 2009, and concluding on December 2, 2009. 14 4. On December 10, 2009 at 11:40 p.m., Jeffrey Mausner (counsel of 15 record for Perfect 10) emailed me a document that included (1) Perfect 10's 16 arguments in opposition to Google's Spoliation Motion, intermingled with (2) a 17 separate motion by Perfect 10 seeking a document preservation order against 18 Google, about which Perfect 10 had not properly met and conferred ("December 10 19 Joint Stipulation"). Also attached to Mr. Mausner's emails were various declarations 20 and evidence claiming to support the aforementioned arguments. 21 5. On the morning of December 11, 2009, I sent Mr. Mausner an email 22 objecting to Perfect 10's inclusion of an entirely separate motion in Perfect 10's 23 portions of the Joint Stipulation on Google's Spoliation Motion, and explaining that 24 Perfect 10's actions violated the Court's Local Rules. Because Perfect 10 refused to 25 (1) remove the arguments and evidence supporting Perfect 10's new motion from the 26 Joint Stipulation on Google's Spoliation Motion, and (2) deliver a corrected version 27 of its portions of the Joint Stipulation (containing only Perfect 10's opposition to 28
01980.51320/3246197.1

DECLARATION OF RACHEL HERRICK KASSABIAN

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1 Google's Spoliation Motion) to me, we were forced to file Google's Spoliation 2 Motion along with a statement of non-cooperation. 3 6. On December 14, 2009 at 1:27 a.m., Mr. Mausner sent an email to this 4 Court's clerk, Sandra Butler, requesting that Ms. Butler inform Magistrate Judge 5 Hillman that on December 15, Perfect 10 would file "the Joint Stipulation that it 6 emailed to Google on December 10." Again, that December 10 Joint Stipulation in 7 fact included (1) Google's Spoliation Motion which Google had already filed on 8 December 11, and (2) P10's opposition thereto, intermingled with (3) Perfect 10's 9 new motion against Google (about which Perfect 10 had failed to meet and confer). 10 7. After reviewing Mr. Mausner's December 14 email to Ms. Butler, I 11 sent him an email later that same day, again requesting that Perfect 10 meet and 12 confer with Google before filing its planned motion. I specifically asked Mr. 13 Mausner the following: "what documents does Perfect 10 believe have not been 14 preserved, and what basis does Perfect 10 have for that belief?" I further reminded 15 Mr. Mausner that if Perfect 10 wished to proceed with its motion, it must follow the 16 Local Rules governing preparation of joint stipulations on discovery motions by 17 giving Google five court days to provide its responsive portions of the Joint 18 Stipulation. Finally, I informed Mr. Mausner that Perfect 10 did not have Google's 19 permission to file Google's portions of the December 10 Joint Stipulation. 20 8. Nevertheless, on December 15, 2009, Perfect 10 went ahead and filed 21 its motion for a document preservation order against Google, including the 22 December 10 Joint Stipulation. The December 10 Joint Stipulation includes 23 Google's counsel's name and address in the caption on the cover page, as though 24 Google had participated in or consented to the filing of this document, which was 25 not true. Perfect 10 included Google's arguments in this document against my 26 express instructions, and without Google's authorization. 27 28
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DECLARATION OF RACHEL HERRICK KASSABIAN

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9.

The December 10 Joint Stipulation does not include Google's response

2 to Perfect 10's motion. Perfect 10 did not give Google five court days to provide its 3 response (as required by Local Rule 37-2.2) before filing Perfect 10's motion. 4 I declare under penalty of perjury under the laws of the United States of 5 America that the foregoing is true and correct. Executed December 16, 2009 at San 6 Francisco, California. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3246197.1

Rachel Herrick Kassabian

DECLARATION OF RACHEL HERRICK KASSABIAN

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