Perfect 10 Inc v. Google Inc et al

Filing 693

MEMORANDUM in Opposition to MOTION for Discovery regarding A DOCUMENT PRESERVATION ORDER TO PREVENT SPOLIATION OF EVIDENCE BY GOOGLE #670 Google Inc.'s Opposition to Perfect 10, Inc.'s Motion for a Mutual Document Preservation Order to Prevent Spoliation of Evidence by Google [PUBLIC REDACTED] filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Declaration of Rachel Herrick Kassabian in Support Thereof, and Exhibits A-E Thereto [PUBLIC REDACTED], #2 Declaration of Kris Brewer in Support Thereof, and Exhibits A-B Thereto [PUBLIC REDACTED])(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 693

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar o. 19b417} [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: 213} 443-3000 Facsimile: 213) 443-3100 Charles K. erhoeven (Bar No. 170151) [e-mail] 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

9 Attorneys for Defendant GOOGLE INC. 10 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 14 15 vs. Hon. Stephen J. Hillman DEFENDANT GOOGLE INC.'S OPPOSITION TO PLAINTIFF PERFECT 10 INC .' S MOTION FOR A MUTUAL llOCUMENT PRESERVATION ORDER TO PREVENT SPOLIATIQN OF EVIDENCE BY GOOGLE Declarations of Rachel Herrick assabian and Kris Brewer f led concurrently] Date: January 15, 2010 Time: 10:00 a.m. Crtrm.: 550 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED PERFECT 10, INC., a California corporation, Plaintiff, DISCOVERY MATTER CASE NO. CV 04-9484 AHM (SHx} [ Consolidated with Case No. CV OS4753 AHM (SHx)] UNITED STATES DISTRICT COURT

1b GOOGLE INC. a corporation; and DOES 1 through 100, inclusive, 17 Defendants. 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a corporation, 21 Plaintiff, 22
vs.

23 AMAZON.COM, INC., a corporation; 24 A9.COM, INC. a corporation; and DOES 1 through 100, inclusive, 25 Defendants. 2b 27 28
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GOOGLE'S OPPOSITION TO PERFECT 10'S MOTION FOR A DOCUMENT ARESERVATION ORDER

Dockets.Justia.com

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TABLE OF CONTENTS
Page

4 PRELIMINARY STATEMENT ............................................................................... 1 S ARGUMENT ............................................................................................................ 2 6 I. 7 8 91 10,^i I1'^^ 12, II. 13' 14'. III. 15'. 16 17 18 19 20 21 22 23 24 25 26 27 28
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P10 FAILS TO MEET THE STANDARD FOR A DOCUMENT

PRESERVATION ORDER AGAINST GOOGLE ......................................... 2
A. A Document Preser^ration Order Against Google is Unnecessary ......... 4 1. 2. B. Google Has Not Lost or Destroyed Evidence .............................. 5 Goole Has Maintained Appropriate Document Retention Palic^es and Procedures .............................................................. 6

A Document Preservation Order Against Google Would Be Unduly Burdensome ............................................................................. 7

P 10' S CLAIMS THAT GOOGLE FAILED TO COMPLY WITH DISCOVERY ORDERS ARE FALSE AND IRRELEVANT ......................... 5

P10 SHOULD BE SANCTIONED FOR BRINGING ANOTHER

FRIVOLOUS MOTION IN DEROGATION OF THE LOCAL RULES ........................................................................................................... 9

-1GOOGI.E'S OPPOSITION TO PERFECT I O'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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TABLE OF AUTHORYT^ES P___a^e Cases

4 American LegalNet, Inc. v. Davis, 2009 WL 4796401 {C.D. Cal. Nov. 25, 2009} ..........................................1, 2, 4, 7 5 Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D. Pa. 2004) .................................................................2, 3, 4 6 7 Elling ton Credit Fund, Ltd. v. Select Port olio Services, Inc., 8 9 10 11 12 Hager v. Karr, 2006 WL 163000 ( C.D. Ca l . Jan. 13 , 200 6 ) ............................................. .......... 10

2009 WL 274483 { S.D.N.Y . Feb. 3 , 2^09) ........................................................... 3

Estate of Gonzalez v. Hickman, 2007 WL 323 8 725 ( C . D . C a l . M ar. 2 8 , 2 00 7} .......................................... .......... 10 Gregg v. Local 305 IBEW, 2008 WL 5171085 (N.D. Ind. Dec. 8, 2008} ............................................ ............3

13 Hester v. Bayer Cor ., 206 F . R.D. 683 (M.D. Ala. 2001) ............................................................ ............3 14 MySpace, Inc. v . Wallace, 2008 WL 1766714 ( C.D. Cal . Apr. 15 , 2008 ) .......................................... .......... 10 15 16 Posdata Co. Ltd. v. Kim, 20Q7 WL 1848661 (N.D. Cal . June 27, 2007) .......................................... ........ 7, 8 17 In re Potash, 1994 WL 1108312 (D. Minn . Dec. 5 , 1994) ............................................. ............3 18 19 Puehlo of Laguna v. U. S:, 60 Fed . C1. 133 (Fed . C1.2004 ) ................................................................ .... 2, 3, 4 Realnetworks, Inc. v. DVD Copy Control Assn, Inc., 2Q09 WL 1258970 (N .D. Ca l . May 5 , 2009 ) ............................................ ............ 4

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22 Superior Communications v. Earhugger, Inc., 257 F . R.D. 21 S ( C.D. Cal. 2009) ............................................................. .......... 10 23 Treppel v. Biovail Corp ., p 233 F . R.D. 363 {S.D . N.Y. 2006) .............................................................. 2, 3, 4 , 7 24 25 U. S. ex rel. Smith v. The Boeing Co., 2005 WL 2105972 { D. Kan . Aug. 31 , 2005 ) ............................................ ............ 3 United Medical Su ly Co., Inc. v. U. S., 73 Fed . C1. 35 ^d. Cl. 2006} .................................................................. ............ 4

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GOOGLE`S OPPOSITION TO PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER ^^^

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United States ex rel. O'Connell v. Chapman University, 245 F.R.D. 646 (C.D. Cal. 2007 ) .......................................................................10 Williams v Mass. Mut. Lie Ins. Co., 226 F.R.D. 144 (D. ass. 2005 } .........................................................................2

-111GOOGLE'S OPP05ITION TD PERFECT I0'S MOTION POR A DOCUMENT PRESERVATION ORDER

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PRELIMINARY STATEMENT On December 11, 2009, Google fled a motion for a document preservation order based upon evidence obtained during discovery indicating that Perfect 10, Inc.

4 ("P10") had destroyed certain relevant documents during the pendency of this 5 Litigation {"Google's Motion"). Afterward, P10 filed a knee jerk "me too" motion 6 ^ against Google ("PTO's Motion") that lacks any basis. Specifically, P10's Motion 7 asserts two arguments, neither of which supports issuance of a document 8 preservation order against Google. 9 First, P10 claims that Google has failed to produce certain categories of

10 documents and that this somehow bears on the issue of document preservation. It 11 does not. These arguments are a rehash of discovery claims P10 already made in a

12 different motion for sanctions P10 filed several weeks ago, and as Google i3 previously demonstrated in its opposition to that motion, none of P10's claims has 14 merit. Further, the issue of whether Google produced documents has no bearing on 15 whether documents have been properly maintained. 16 Second, P10 speculates that it is theoretically possible that Google might not

17 have properly maintained relevant documents. P 10 fails on this count as well: while 18 it is always possible that a party might not uphold its obligations under the Federal 19 Rules, the authorities are clear that the indefinite or unspecified possibility of the 20 loss or destruction of evidence does not warrant the entry of a document 21 preservation order. Moreover, P10's speculation is incorrect, because Google has 22 taken all steps necessary to preserve relevant data in this case, and has had proper 23 document retention policies and practices in place throughout this case. 24 25 26 27 28
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P10's reactive, inapposite Motion should be denied.

GOOGI.E'S OPPOSITION TO PERFECT 10'5 MOTION FOR A DOCUMENT PRESERVATION ORDER

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ARGUMENT

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P1Q FAILS TO MEET THE STANDARD FOR A DOCUMENT PRESERVATION ORDER AGAINST GOOGLE. P10 has not even come close to meeting the standard governing its Motion.

5 Preservation orders are not entered lightly or without cause. American ,,Le,galNet, 6 Inc. v. Davis, 2009 WL 4796401, at *7 (C.D. Cal. Nov. 25, 2009 ) ("Because of their 7 ^ very potency, inherent powers [to issue preservation orders] must be exercised with 8 ^ restraint and discretion."). A party seeking a preservation order must demonstrate 9 that such an order is (1) necessary and {2) not unduly burdensome. See Pueblo of 10 Lacuna v. U.S., 60 Fed. C1. 133, 138 {Fed. C1. 2004). 11 "To meet the first prang of this test, the proponent ordinarily must show that

12 ^ absent a court order, there is significant risk that relevant evidence will be lost or 13 destroyed ------ a burden often met by demonstrating that the opposing party has lost

14 or destroyed evidence in the past or has inadequate retention procedures in 15 place ." Td. (emphasis added); see also Treppel v. Biovail Corp., 233 F.R.D. 363, 16 370-71 (S.D.N.Y. 2006) (adopting version of Pueblo of Laguna test); Williams v. 17 Mass . Mut. Life Ins. Co., 226 F.R.D. 144, 147 (D. Mass. 2005} (adopting Pueblo of 18 La na test).' 19 20 21 22 23 24 25 26 27 2$
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I Some courts have adopted athree-factor test, weighing "(1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; (2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and (3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence's original farm, condition or contents, but also the physical, spatial and financial burdens created by ordering evidence preservation." Capricorn Power Co., Inc. v. Siemens Westinghause_ Power Corp., 220 F.R.D. 429, 433-34 {W.D. Pa. 2004). "The difference between these two tests lies in what the moving party must show with respect to the content of the evidence (footnote continued)
-2GOOGL.E'S OPPOSITION TO PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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Thus , absent some specific , affirmative evidence of document destruction or

2 inadequate document retention procedures , a document preservation order will not 3 be imposed. See American LegaINet , 2009 WL 4796401 , at *8 (denying motion for 4 preservation order where moving parry "presented absolutely no evidence that any 5 relevant information has been lost or destroyed ").2 Mere supposition or speculation 6 of possible document destruction or inadequate document retention will not suffice; 7 where "the need expressed by the moving party far a preservation order is based 8 upon an indefinite or unspecified possibility of the loss or destruction of evidence, 9 rather than a specific significant, imminent threat of loss, a preservation order 10 usually will not be justified ." Capricorn Power Co ., 220 F . R.D. at 433 ; see also 11 Hester v. Bayer Corp., 206 F.R.D. b83 , 685 (M. D. Ala. 2001 ) ("Ta supplement

12 every complaint with an order requiring compliance with the Rules of Civil 13 Procedure would be a superfluous and wasteful task , and would likely create no 14 more incentive upon the parties than already exists."); In re Potash , 1994 WL 15 16 1108312 , at *8 (D. Minn. Dec . 5, 1994). The second prong of the Pueblo of Laguna test Iooks to "what data-

17 J management systems are already in place, the volume of data affected, and the casts 1$ 19 20 that is in danger of being destroyed . However , the distinction is more apparent than real." _ reppel, 233 F . R.D. at 370. T 21 a See also Ellington Credit Fund , Ltd. v. Select Portfolio Services , Inc., 2009 22 WL 274483 , at *2 (S . D.N.Y. Feb . 3, 2009) (denying motion for preservation order where " plaintiff had not demonstrated that any documents had in fact been 23 destroyed"}; Gregg v . Local 305 IBEW, 2008 WL 5171085 , at * 1 (N.D. Ind. Dec. 8, 24 2008} (preservation order unwarranted where plaintiff had "not produced any evidence that suggests Defendants have not complied or do not intend to comply 2S with their duty to preserve evidence "}; Treppel , 233 F . R.D. at 372 (" Since the 26 plaintiff has not demonstrated that any documents have in fact been destroyed," he .); U.S. ex rel . Smith v. The 27 cannot meet the standard for issuing a preservation order Boeing_Co ., 2005 WL 2105972 , at *2 (D . Kan. Aug. 3I, 2005 ) {preservation order is 28 (footnote continued)
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and technical feasibility of implementation [on the affected party]." Treppel, 233

2 F.R.D. at 372 (quoting MANUAL FOR COMPLEX LITIGATION, FOURTH § 11.442 at 73 3^ (2004)). This prong is closely tied to the first, such that an order requiring the

4 preservation of all potentially relevant documents generally is not considered unduly S burdensome in the presence of evidence of actual or potential document destruction. 6 See Pueblo of Laguna, 60 Fed. Cl. at 139-141; United Medical Su 1 Co. Inc. v. 7 U.S., 73 Fed. Cl. 3S, 37 {Fed. C1. 2006). Likewise, a document preservation order 8 will be considered unduly burdensome where there is na evidence of actual or 9 potential document destruction. 10 Le^alNet, 2009 WL 4796401, at *8. 11 12 13 P10 has failed to meet either prong of this test. A, A Document Preservation Order Against Goo>zle Is Unnecessa
See Treppel, 233 F.R.D. at 372; American

P10 presents not a shred of evidence that there is any risk, let alone "a

14 significant risk that relevant evidence will be lost or destroyed" by Google. Pueblo 15 of Lacuna, 66 Fed. Cl. at 138. P10 contends merely that "Google has concealed and 16 suppressed documents, and therefore, may have destroyed documents ." Notice of 17 Motion at 2:13-14 (emphasis added). This very statement affirms the absence of

18 any basis for P10's Motion-speculation and supposition are not enough. American ^ 19 Le^a 1Net, 2009 WL 4796401 at *8; Capricorn Power, 220 F.R.D. at 433. 20 Speculation aside, P10 has not made the required showing that (1} documents have 21 been destroyed in the past, or that (2) Google does not maintain adequate document

22 retention policies.3 23 24 inappropriate where "[n]o showing has been made of a significant threat that documents will be last or destroyed absent an immediate order"}. 25 3 In seeking what it describes as a mutual preservation order , P10 erroneously 26 suggests that two cases cited in Google ' s Motion support the notion that a court can enter a preservation order against a party without cause . The cases stand for no such 27 thing . The court in Realnetwarks , Inc. v. DVD. Copy.,Control Ass n, Inc . instructed 28 {footnote continued}
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1.

Goode Has Not Lost Or Destroyed Evidence.

P10 has presented no evidence whatsoever that Google has lost or destroyed

3 anything. Instead, P10 postures that prior to May 1, 2D0$, Google had produced 4 only six emails sent from five specific email accounts regarding the processing of 5 P 10's claimed DMCA notices-implying that there should have been more such 6 emails. See P10's Motion at 36:1.6-27; Declaration of Norman Zada in Support of 7 Perfect 10's Motion (Docket No. 663) at 2:2-3. Yet in the same breath, P10

8 concedes that Google did produce many more of those processing emails on or after 9 May 1, 2008. See P10's Motion at 36:22-2^1 ("After May 1, 2008...Google i0 suddenly produced more emails, many from 2005 "}. 11 12 13 Plainly, no document

destruction or loss occurred since P10 admits these emails were in fact produced. Moreover, P10's accusations are simply incorrect. Prior to May 1, 200$

Google had indeed produced many more than six emails from the five specific email

14 accounts referenced in P10's Motion -Google had produced many dozens of such 1S emails, in fact. Declaration of Rachel Herrick Kassabian ("Kassabian Decl."), filed 16 concurrently, at ^ 14. Moreover, to date, GoagIe has produced over 1,000 emails 17 from various email accounts regarding its processing of P10's claimed DMCA 18 notices. Id. P10 has proffered no evidence that Google has lost or destroyed

19 DMCA processing emails - or any other documents, for that matter. 20 21 22 23 24 the parties to cooperate in drafting a document preservation order that would apply ^ only to one parry, the plaintiff, after finding that "Real did not have a preservation 2S ',policy in place." 2009 WL 1258970, at *10 (N.D. Cal. May S, 2009). Similarly, the 26 court in Pueblo of Lacuna only ordered one party -the United States - to preserve documents after finding that failures in its document retention procedures were 27 "pervasive and systematic." 6D Fed. C1. at I39. 2$
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GOOCLE'S OPPOSITION TO PERFECT I O'S MOTION FOR A^^DOCUMENT PRESERVATION ORDER

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Google Has Maintained Appropriate Document Retention Policies And Procedures.

P10 also presents nothing but speculation that Google's document retention

4 policies might be inadequate or that Google might have failed to take necessary 5 steps to preserve relevant data. See P10's Motion at 25:2$-26:2, in fact, Google b has had proper document retention policies in place throughout this litigation. See 7 Declaration of Kris Brewer in Support of Google's Opposition to Perfect 10's S Motion for a Document Preservation Order ("Brewer Decl."), filed concurrently, 9 ¶¶ 3-9. 10 11 12 13 14 15 16 17 1$ 19 20 21 22 23

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properly met and conferred with Google prior to filing this motion, Google would have informed P10 of this fact.

GOOGLE'S OPP05ITION TO PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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Google's document collection efforts provide further confrmation that

2 Google has employed appropriate document retention and preservation practices in 3 this case. When P10 first served document requests on Google in March 2005 {less 4 than four months after the case was f Ied}, S 6 14 fortiori, documents that were collected and produced just a few months after

7 the complaint was filed could not have been {and were not) lost or destroyed. 8 9 10 11 12 Google's document preservation policies and practices in this case have been

13 more than suff cient, and P10 has failed to demonstrate otherwise. 14 15 16 B. A Document Preservation Order Against Google Would Be Unduly Burdens©me. Because P10 has presented no evidence of actual or potential document

17 destruction by Google, any document preservation order against Google would be 1$ unduly burdensome. See Tr ^ eppel, 233 F.R.D. at 372; American LegalNet, 2009 WL 19 4796401, at *8. Moreover, P10 has failed to show that a document preservation

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order against Google would not impose an undue burden. For example, P10 has

21 failed to specify what documents the Court should order to be preserved, on what
systems, or for which custodians -much less assess the hardship its unspecified

23 preservation order would impose on Google. P 10's Motion should be denied for 24 this additional reasons

2S 26
P10 posits that "^c^ourts often apply a preservation order to both parties" and 27 asks far such an order here. P10's Motion at 24:3. P10 is incorrect, and its cited authority has nothing to do with document preservation orders. See Posdata Co. 28 {footnote continued)
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DISCOVERY ORDERS ARE FAL5E AND YRRELEVANT. Instead of addressing the relevant test for issuance of a preservation order,

4 ^ P10 rehashes the many demonstrably false claims first made in its Motion for 5 Evidentiary Sanctions and ether Sanctions andlor the Appointment of a Special 6 ^ Master (Docket No. 633) ("Sanctions Motion"). In fact, much of Perfect 10's 7 instant Motion is copied verbatim from its prior Sanctions Motion. Cow

8 Motion , 27:2-32: 10 and 32 :11-36:7; with Sanctions Motion , 6:6-10:25 and 11:1, 9 10 11 14:17. As was the case the first time P10 made these arguments, none has merit. See Google's Opposition to P10' s Sanction Motion (Docket No. 653}.6 Moreover,

12 Perfect 10's groundless accusations are irrelevant here because none concern the 13 actual or potential destruction of documents by Google. P10's Motion at 26:1114 36:7. The only categories of documents described by P10 that Google has not

15, produced -third-party DMCA notices for products other than Web and Image 16 17 18 19 20 21 22 23 24 25 26 27 28
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Ltd. v. Kim, 2007 WL 1848661, at *9-10 (N.D. Cal. June 27, 2007) (merely noting that both parties had a duty "to preserve all evidence potentially relevant to a claim or defense."). Similarly, P10's belief that "a mutual preservation order will prevent Google from attempting to impose something on Perfect 10 which is overly burdensome" is nonsensical. P 10's Motion at 24:17-19. Google has f led its motion for a preservation order based upon (among other things) concrete evidence that P10 has destroyed documents during the course of this litigation. See Gaogle's Motion at 11:6-12:7. Issuing a mutual order against Gaggle-in the absence of any basis for such an order-would not somehow ease the document preservation burden P10 must rightfully shoulder given its record of document destruction. 6 All of the discovery issues P10 recounts in the instant Motion have already been fully briefed in P 10's Sanctions Motion and Gaogle's Opposition thereto. See Docket Nos. 633 and 653. Rather than burden the Court by repeating those arguments here, Google respectfully refers the Court to its Opposition at 5:310:13 (Docket No. 653), and incorporates those arguments by reference as though fully set forth herein.

GOOGLE'S OPPOSITION TO PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER

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1 ^ Search, and Blogger termination emails -were never even requested by P10. 2 Google's Opposition to Perfect 10's Sanctions Motion at 9:12-10:5. Similarly,

3 P10's irrelevant and inappropriate objections based on the content of the documents 4 that Google has properly maintained and produced have no conceivable relationship 5 to P10's request for a document preservation order. Id. at 6:10-9:11. None of P1D's b discovery gripes has merit, nor do they have any bearing on the legal standard here. 7 III. 8 9 P^.O SHOULD BE SANCTIONED FOR BRINGING ANOTHER

FRIVOLOUS MOTION IN DEROGATION OF THE LOCAL RULES. P10's motion is baseless, and in fling it P10 has flouted the Local Rules.

la Despite Google's repeated requests, P 10 failed to meet and confer on its Motion, 11 never once identifying the legal or factual basis for its Motion, or the relief it was

12 seeking. In fact, Perfect 10 did not even fnention that it might bring this Motion I3 until December 3, 2009, immediately after P10 had received the joint stipulation on 14 Google 's Motion. Google promptly informed P10 that Google had taken all steps 15 necessary to preserve evidence in this case, 16 and

17 asked what specific concerns (if any} P10 had with Google's document preservation I8 efforts. Kassabian Decl. ¶¶ 5-6, Exs. B & C. P10 failed to identify even one. Td. ¶¶ 19 6-7. Indeed, the only time P10 ever even so much as asked Google a single question 20 about document preservation was at the tail end of a letter P10 sent in September 21 2009 , in reactive response to Google 's meet and confer efforts regarding P 14's Declaration of Rachel Herrick Kassabian dated

22 apparent document destruction .

23 December 2, 2009 (Dkt. No. 658} at ¶ 4, Ex. B . Even there, P10 did not identify any 24 specif c cause for concern regarding Google ' s document preservation efforts (ice, 2S and Google ' s subsequent responses mare than addressed P 10's vague demands. 26 Kassabian Decl. ¶^ 5-6, Exs. B & C. 27 Moreover, P10 has ignored the procedures governing preparation of joint Local Rule 37-2.2 provides that the moving party must provide its

28 stipulations.
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_ -9.__ GOOGLE's OPPOSITION TO PERFECT I0'S MOTION FOR A DOCUMENT PRESERVATION ORDER

1 ^ portions of a joint stipulation on its motion, and must give the receiving party no 2 less than fve court days to prepare and return its responsive portions. Rather than 3 ^ create a joint stipulation on its motion, P10 instead purported to insert its own 4 "motion" into the joint stipulation an Goagle's Motion. Kassabian Decl. ^ 8. P10 5 ^ did not even add a section allowing for Google's apposition to that "motion." Id. 6 ^ Google made clear that if P10 wished to file its own motion, it must first complete 7 the meet-and- confer process on that motion {L.R. 37-1} and then provide its portions 8 of a joint stipulation on that motion to Google and give Google fve court days to 9 prepare its portions in response {L.R. 37-2}. Kassabian Decl. ¶ 9, Ex. D. P10 did 10 not do so. On December 15, 2009 P 10 filed the instant Motion against Google,

11 ^ without having given Google the required five court days to prepare its responsive 12 portions, and incorrectly represented to this Court that its filing contained Gaogle's 13 opposition to P10's Motion (when in fact it did not). Id. ^ 10-11. 14 P10's Motion is baseless in substance and retaliatory in nature. P10 fled it

15 ^ without having met and conferred with Google and without having given Google the 16 required fve court days to respond to it, in violation of the Local Rules. In these 17 circumstances , sanctions against P10 are appropriate. See Local Rule 37-4 ("[t]he 18' failure of any counsel to comply with or cooperate in the foregoing procedures may 19i result in the imposition of sanctions."}.^ P10 should be admonished that such abuses 20 21 22 7 See, e.^., Superior Communications v. Earhugg_ Inc ^ 257 F.R.D. 215, 221 e r, (C.D. Cal. 2009) {ordering counsel to show cause why he should not be sanctioned for violating Local Rule 37-2.2); United States ex rel. O'Connell v. Cha man University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) {same); Estate of Gonzalez v. _Hickman, 2007 WL 3238725, at *2 {C.D. Cal. Mar. 28, 2007) (same); M^pace, Inc. v. Wallace, 2008 WL 1766714, at *1 {C.D. Cal. Apr. 5, 2008) (recommending award of sanctions under Local Rule 37-4 for discovery misconduct); Hager v. Karr, 2006 WL 163000, at *2 (C.D. Cal. Jan. 13, 2006} (awarding sanctions under Local Rule 37-4).

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of the Court's time and resources are unacceptable, through the imposition of

2 sanctions in the amount of $5,000. 3 4 DATED : December 3I, 2009 5 b 7 8 9 IO I1 I2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, ^UINN EMANUEL URQUHART OLIVER & EDGE. LLP

By

^^^^^f^ {^-^^L^^fZ^ ^C^,^^^'^^.. Rachel Herrick Kassabian Attorneys for Defendant GOGGLE INC.

GOOGLE'S OPPOSITION TO PERFECT 10'S MOTION FOR A DOCUMENT PRESERVATION ORDER