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 Att. 1

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417} [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles , California 90017-2543 Telephone : [phone] Facsimile : 213 443-3100 Charles K. erhoeven ( Bar No. 170151} charlesverhoeven @quinnemanuel. com 50 California Street, 22nd Floor San Francisco ? California 94111 Rachel Herrick Kassabian (Bar No . 191060} rachelkassabian ( ^quinnemanuel.com a 555 Twin Dolphin-Drive, Suite 560 Redwood Shores , California 94065

9 Attorneys for Defendant GOGGLE INC. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) rConsolidated with Case No. CV 054753 AHM (SHx)^ DISCOVERY MATTER
vs.

13 PERFECT 10, INC., a California corporation, 14
Plaint

15 GOGGLE INC . a corporation; and DOES 1 through 100, inclusive, 17 18 Defendants. 19 AND COUNTERCLAIM 20 21 PERFECT 10, INC., a California corporation, 16

Hon. Stephen J. Hillman DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOGGLE INC.'S OPPOSITION TO PERFECT I0, INC.' S MOTION FOR A DOCUMENT PRESERVATION ORDER TO PREVENT SPOLIATION OF EVIDENCE BY GOGGLE Date: January 15, 2010 Time: 10: 00 a.m. Ctrm: 5 50 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

22 ^ Plaintiff, 23 vs. 24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 throug^ 100, inclusive, 26 ^ Defendants. 27 28
01980 .513201326 E 996. f

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 ("GoogleY') 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 8 Perfect 10's Failure to Comply with the Local Rules in Filing Its Motion 2. On December 11, 2009, Google filed a Motion for a Document

9 ^ Preservation Order to Prevent Further Spoliation by Perfect 10 {Docket No. 654} 10 ("Google's Motion"}. Google's Motion is based on (among other things} evidence 11' Google obtained during discovery indicating that that certain Perfect 10 documents 12 had been destroyed during the pendency of this litigation. Google had met and 13 conferred with Perfect 10 regarding the issues raised by Google's Motion on various 14 dates beginning on August 25, 2009, and concluding on December 2, 2009. 15 3. After the close of business on December 2, 2009 and before the start of

16 business on December 3, 2009, my colleague Brad Love emailed Perfect 10's 17 counsel Jeff Mausner Google's portions of the Joint Stipulation on Google's Motion, 1$ together with Google's supporting declaration and exhibits. 19 4. On December 3, 2009, Mr. Mausner sent me an email stating that

20 unless Google agreed to the imposition of a document preservation order against 21 Google, "Perfect 10 will file a motion requesting the same relief Google has sought

22 against Perfect 10." Attached as Exhibit A is a true and correct copy of Mr. 23 Mausner's December 3, 2009 email. 24 5. Later on December 3, 2009, I responded to Mr. Mausner, informing

25 him that Google has taken all steps necessary to preserve evidence in this case, 26 consistent with the law. I also asked him if Perfect 10 had any specific concerns 27 about Google's document preservation efforts that it would like to discuss through 28 the meet and confer process . Attacl"^ed as Exhibit B is a true and correct copy of my
O 1980.5132013261946. I ^t-

DECLARATION OF RACHEL HERRRICK KASSABIAN

1 ^ December 3, 2009 email to Mr. Mausner. Perfect 10 never responded to my email 2 ^ with any specific concerns. 3 6. On December 9, 2009, having received no substantive response to my

4 December 3 email, I followed up with another email to Mr. Mausner. I again asked 5 that if Perfect 10 had some basis for specific concerns regarding any particular 6 ^ document retention issues, we would be happy to discuss them via the meet and 7 confer procedures. 8

Attached

9' as Exhibit C is a true and correct copy of my December 9, 2009 email to Mr. 10' Mausner. Perfect 10 never responded to my email with any specific concerns. 11 7. As of the date of this declaration, Perfect I 0 still has not met and

12 ^ conferred with Google regarding any specif c concerns Perfect 10 may have with I3 Google's document preservation procedures or policies. 14 8. On December I0, 2009 at 11:40 p.m., Mr. Mausner emailed me a

15 document that included {1}Perfect 10's arguments in opposition to Google's Motion, 16 intermingled with (2} a separate motion by Perfect 10 seeking a document I7 preservation order against Google. 18 9. On the morning of December 11, 2009, I responded to Mr. Mausner's

19 email , objecting to Perfect 10's service of a motion upon Google without first 20 meeting and conferring about the substance of the motion. I asked that Perfect 10 21 fulf 11 its meet and confer obligations, and once that was complete, that Perfect 10

22 permit Google the required five court days to respond to any joint stipulation Perfect 23 I O might serve. A true and correct copy of my December 11, 2009 email is attached

24 hereto as Exhibit D. 25 10. On December I4, 2009, I emailed Mr. Mausner, again asking that

26 Perfect 10 meet and confer with Google before filing its planned motion for a 27 preservation order against Google. I specifically asked Mr. Mausner the following: 28 '', "what documents does Perfect 10 believe have not been preserved, and what basis
0! 984.5132413251996. f -L-

DECLARATION OF RACHEL HERAICK KASSABIAN

1', does Perfect 10 have for that belief'?" I further reminded Mr. Mausner that if Perfect 2' ^ 10 wished to proceed with its motion, it must follow the Local Rules governing 3 preparation of joint stipulations on discovery motions by giving Google five court 4'I days to provide its responsive portions of the Joint Stipulation. Attached as Exhibit 5'^ E is a true and correct copy of my December 14, 2009 email to Mr. Mausner. 61, 11. Nevertheless, on December 15, 2009, Perfect 10 went ahead and filed

7 its motion for a document preservation order against Google. In doing so, Perfect 8 10 did not give Google f ve court days to provide its responsive portions {as

9 required by Local Rule 37-2.2) before filing Perfect 10's motion. 10 11 12 13 14 15 13. On March 1 S, 2006 Google produced to Perfect 10 an email dated June 12. Google's Document Production to Perfect 10 To date, Google has produced approximately

16 ^ 26, 2001 bearing control numbers GGL 001347-8. 17 14. I have reviewed the Declaration of Norman Zada filed December 13,

18 ^ 2009 (Docket No. 663), in which Dr. Zada states that prior to May 1, 2008 Google 19 had produced just six emails from five specific email accounts involved in the 20 processing of Perfect 10's claimed DMCA notices-Paul Haahr's email account, 21 Shantal Rands ' email account, Glen Brown's email account, help^a^^oogle .com, and oo le.com. This is incorrect . In fact, prior to May 1, 200$ Google

22 dmca-a ent

23 had produced at least 84 emails from those five email accounts . Moreover , to date, 24 Google has produced over 1,000 emails from various email accounts regarding its 25 processing of Perfect 10's claimed DMCA notices. 26 27 28
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-_^DECLARATION OF RACHEL HERRICK KASSABIAN

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I declare under penalty of perjury under the laws of the United States of

2 America that the foregoing is true and correct. Executed December 30, 2009 at San 3 Francisco, California. 4 S, 6, 7 8 9 10 11 12 13 14 15 lb 17 18 19 20 21 22 23 24 25 26 27 28
0[980 .5132013261896,!
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Rachel Herrick Kassabian

DECLARATION OF RACHEL HERRICK KASSABIAN

EXHIBIT A

From : Sent : To: Cc:
Subject :

Jeffrey Mausner [e-mail]] Thursday, December fl3, 2009 1:48 PM Brad R. Love Rachel Herrick Kassabian ; Thomas Nolan; Valerie Kincaid; [e-mail]; ajmalutta@townsend .cam; Timothy Cahn; [e-mail]; Steiner, Elham F.; Michael T Zeller; Andrea P Roberts; Charles K Verhaeven
RE: Perfect 10, inc. v. Google Inc.: Joint Stipulation on Gaogle's Motion for a Documenk Preservation Order

Rachel, Perfect 10 received Google's joint stipulation. Perfect l0 is amenable to agreeing upon a preservation order that would apply mutually and equally to Perfect i 0 axzd Google. Please let me know if you are interested by the close of business today. Tf Google does not want to agree to resolve this dispute as outlined above, then Perfect 10 will ale a motion requesting the same relief Google has sought against Perfect l0. Perfect 10 will file the motion and seek the order based upon, inter olio, Google's refusal to respond to the questions in my September 8, 2009 lettei (page 2}, Google's failure to produce numerous documents (as set forth in Perfect l Q'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 xeceive Google's portions of the Joint Stipulation and supporting exhibits until December 3, so xxiy calculation is that our portions are not due until December 10. Jeff.

From : Brad R. Lave [maill:o:[e-mail]] Sent : Thursday, December 03, 2009 12:00 AM To: Jeff Mausner Cc: Rachei Herrick Kassabian; Thomas Nolan Subject : Perfect 10, Inc. v, Google Inc.: Joint 5tlpufation on Gaogle's Motion for a Document preservation Order

Jeff, Attached are Google's portions of the Joint Stipulation an Google Int.'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 Loca! 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,

Exhibit A, Page 5

Brad Love Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco , CA 9411'1 Direc# : [phone] Main Phone: [phone] Main Fax: ( 415) 875-6700 uinnemanuel.com 1T-mail: bradlove Web: www.guinnemanuel.corn The information contained in this a-mail message is intended only for the personal and confidential use of the recipients} named above . This message may be anattorney-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 a-mail , and delete the original message.

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Exhibit A, Page 6

E XHIBIT B

EX HIBI T B :

Fil e d U nd er Sea l Pu rs u a n t to Protective Order

EX HIBI T C

EXHIBIT C :

Fil ed U nd er Seal Pu rs u a nt to Protective Order

EXHIBIT D

From : Sent : To; Cc: Subject :

Rachel Herrick Kassabian Friday, December 11, 2009 10:52 AM 'Jeffrey Mausner; 'Valerie Kincaid` Thomas Nolan; Brad R. Love; Michael T Zeller RE: Joint Stipulation re Preservation Order - Einail 2

Jeff,
We have reviewed P1D`s portions of the joint stipulation on Google's motion far a document preservation order. llnfartunately, P10 has not just apposed Google's motion; it has also purported to include its own motion against Google for a document preservation order. As we have already made clear, Pi0 has failed to honor its meet-and-confer obligations under Local Rule 37-1 for any such P10 motion. Nor does P10 have any basis whatsoever to cli^im that ' Google has failed to preserve any documents. in any event, your inclusion of another motion with purported evidence in support thereof) in this joint stlpulation violates the Local Rules governing preparation and filing ofjoint stipulations ( Local Rules 37-2.1 and 37 - 2.2}. Among other things, P10's inclusion of a new motion against Google in this joint stipulation deprives Google of the opportunity to respond to it. Please remove the arguments and evidence constituting P10's motion from P10's portions of the joint stipulation on Google' s motion (and from P10 ' s supporting declarations ), and return the corrected documents to us i1y 3pm today. Please make sure to include both an unredacted and a redacted version of P10's portion of the corrected joint stipulation and PiD' s corrected supporting documents jwhich your documents from last night did not do}. if Perfect 10 does not send us its corrected portions of this joint stipulation ( and corrected supporting declarations} by 3pm today, Google will file its portion of the joint stipulation and its supporting documents ( without P10' s portions), together with a Statement of Non - Cooperation pursuant to Local Rule 37-2.4. If P10 does send us its corrected portions of this joint stipulation and P10's supporting documents by 3pm today , but does not include redacted versions for public filing, we will assume that P10 wants the entirety of its portions of the corrected joint stipulation ( a5 well as the entirety of its corrected supporting declarations ) to be filed under seal, and we will redact the entirety of those materials far the public filed version. lfi Perfect 10 wishes to fle its own motion regarding document preservation issues, please (1} fulfill P10's meet and confer obligations first, and then (2} send us a joint stipulation thereon, which we will respond to within five days, per the local rules governing joint stipulations. Regards, Rachel Rachel Herrick Kassabian ^ Partner
Quinn Emanusl Urquhart diver & Hedges LLP . 555 Twin Dolphin Drive, Suite 560 '

Redwood Shores, CA 94065 650.801.5005 Direct 650.801.5000 Main 650.801.51D0 Fax rachelkassabianC^4uinnemanuel.com
www.quinnemanuel.com NOTICE: 'the fnformatEan e:ontained fn this a-mail message is Intendetf only for ttie {aersonal and confidential use of the recipient{s) named above. This message maybe an attornay-client communication and/ar work product and as such is privileged and confidential. If the reader of this message is not the: intended reciplent or agent responsible for delivering it.' to the irtended recipienl, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or tnpying of tlfis message is strictly prohibited. Ir you have received this commurication in error, please notify vs Irnmediately by a-mail, and delete the original message.

1

Exhibit D, Page 12

From : Jeffrey Mausner [maifto:[e-mail]} Sent : Thursday, December 10, 2409 11:39 PM Ta: Brad R. love; Thomas fVolan; Rachel Herrick Kassabian Subject : Joint Stipulation re Preservaffon Order -Email 2

Attached is the Joint Stipulation in Word foz^rnat. It now contains Perfect I0's portions. Also, Perfect 10 changed the caption page and the footer to reflect that Perfect 10 is also moving for a document preservation order. My declaration is also attached. The Augustine Declaration, Zada Declaration, and Mausner Under Seal Exhibits were sent in a previous erriaiL Jeff

This a-mail may be confidential, or may contain information which is protected by the attorney-client privilege and work product doctrine, as well as other privileges, lfyou are not the intended recipient ofthis a-mail, any dissemination or copying ofthis message is strictly prohibited. Anyone who mistakenly receives this a-mail should notify the sender immediately by telephone or return a-mail and delete it from his or her computer.

Jeffrey N. Mausner Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91357-3540 Telephone : {310}617-8100; (818}992-7500 Facsimile : {818}716-2773 e-mail: ' elf nzausnerlaw.com

^.

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Exhibit D, Page 73

EXHIBIT E

Frorn : Sent : Ta: Cc: Sub)ect : Jeff,

Rachel Werrick Kassabian ' Monday, December 14, 2009 2:57 PM Jeffrey Mausner ; Valerie Kincaid , Michael T Zeller; Thomas Nolan ; Brad R. Lave i=W: Perfect 10 v. Google, CV04-9484 AHM (SHx}, consolidated with CV05-4753 AHM (SHx}

Given your email below, it appears that Perfect 10 intends to file a motion far a document preservation order against Google tomorrow. As you know, an December 3rd and again on December 9`" we asked Perfect 10 to raise any specific concerns it has about Google's document preservation efforts through the meet and confer process. Perfect 10 has not yet done so. Please comply with L.R. 37-1 by giving Google notice of Perfect 10's concerns and an opportunity to address those concerns, prior to filing a discovery motion..For example, what documents does Perfect 10 laelieve have not been preserved, and what basis does Perfect 10 have for that belief? If Perfect 10 has any such concerns, please provide them. If you da not do so, we will assume Perfect 10 has na such concerns. Additionally, if Perfect 10 insists on burdening the court with a discovery motion on which it has not yet met and conferred, the Local Rules require Perfect 10 to (1) provide Google with its portions of a joint stipulation on those issues and (2) allow Google five business days to prepare and send Perfect 10 Google's portions of that joint stipulation. L.R. 37-2. Please follow these Rules. Should Perfect 10 file a joint stipulation on a Perfect 10 motion without giving Google the requisite S business days to provide its portions of that joint stipulation, Googie reserves all rights to ask the Court to strike Perfect 10's improperly submitted discovery motion under L.R. 37-2.4, and to award sanctions under L.R. 37-4.

Lastly, regarding your statement below that you "wzll file the Jioint stipulation which includes both
Google's and Perfect 10's portions on Tuesday," please be advised that you do NQT have Goegle's permission to file Google's portions of Google's Joint Stipulation. Those papers have already been filed. [f Perfect 10 wants to file its opposition to Google's motion, or wants to file.its own motion (as discussed above), we will respond accordingly. However, under no circumstances do you have Google's authority to file any of Google's briefing. L.R. 372.2. Regards, Rachel iierrick Kassabian ^ Partner Quinn Bmanuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 664 Redwood Shores, CA 94065 550.801:5005 Direct 850.801.5000 Main 850.801.5100 Fax rachelkassabian(a^g_uinnemanuel.com. www.quinnemanuel.com

·

N^TICC: The information contained i+t this e-mail message Is intended only far the personal and confidential use o4 file reclpient(s} named above, This message may be an attorney-diem communlcadan and/or work prods+et and as such is privileged and confidential. If the +rader of this message is not the Intended recipient or agent responslhte far dc;livering It to tt+e intended reeiplent, you are hereby ratified that you have received this document in error and that any review, disseminatlan, distribution, or ropytng of this message is strictly prohibited. If you have received this casnmunlcatlon in error, please ratify us immediately by a-mall, and delete the original rr+essage.

From : Jeffrey Mausner [mailto;[e-mail]] Sent : Monday, December 14, 2009 1:27 AM To: Sandra_L [e-mail] Cc: Rachel Herrick Kassabian; Thomas Nolan; Michael T Zeiler; Charles K Verhoeven; Andrea P Roberts; Brad R, Love; [e-mail]; [e-mail]; Timothy Cahn; Steiner, Blham F.; [e-mail] Slubject : Perfect ^10 v. Goag[e, CV04-9884 AHM (SHx), consolidated with CV05-4753 AHM (SHx)

Exhibit E, Page 14

PeYfect 14, Inc. v. Google, Inc., Case No. CV 04-9484 AHM (SHx), Consolidated with Case . No. CV 05-4753 Al-IM (SHx}
Dear Ms. Butler, Could you please inform Judge Hillman of the following: On Friday December 11, 2009, at approximately"4:00 pm, Google filed a motion for a document preservation order. Previously, on December 10, Perfect 10 emailed to Google the Joint Stipulation for that motion, with Perfect 10's portions included. However, on December I I, Google filed a Joint Stipulation, but did not include Perfect 10's portions, because Gaagle refused to include them unless Perfect 10 eliminated references to Perfect 10's own motion for the imposition of a mutual document preservation order, On Tuesday December 14, Perfect 10 will be filing the Joint Stipulation that it emailed to Goİgle on December 10, which includes both Gaogle's and Perfect 10's portions. The Joint Stipulation must be filed under seal, because it contains information that Google has designated confidential and highly confidential and Perfect 10 has designated confidential. X want to make it clear that Perfect XO drd provide its portions of tk^e Joint Stipulation to Google, but Google did not include them in its fling. ^Ne will file the Joint Stipulation which includes both Google's and Perfect I0's portions on Tuesday, after we are finished with fling Perfect 10's Reply papers for a motion that is pending before Judge Matz. Please let me know if you have any . questions regarding this matter. Sincerely , Jeffrey N. Mausner , attorney for Plaintiff Perfect 10, Znc.

This a-mail may be confidential or may contain information which is protected by tie attorney-client privilege and work product doctrine, as well as other privileges. If you are not the intended recipient of this a-mail, any dissemination or copying of this message is strictly prohibited. Anyone who mistakenly ;receives this a-mail should notify the sender immediately by telephone or return a-mail and delete it from his or her computer.

Jeffrey N. Mausner Law Off ces of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street , Suite 9i0 Woodland Hills, California 91367-3640 Telephone: (3 i 0)617-8100; (8 i 8)992-7500 Facsimile : (818}716-2773 e-mail: je^^mausnerlaw.com

Exhibit E, Page 15