Perfect 10 Inc v. Google Inc et al

Filing 696

DECLARATION of JEFFREY N. MAUSNER IN SUPPORT OF MOTION for Discovery regarding A DOCUMENT PRESERVATION ORDER TO PREVENT SPOLIATION OF EVIDENCE BY GOOGLE #670 - REPLY DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF PERFECT 10'S MOTION FOR THE IMPOSITION OF A PRESERVATION ORDER AGAINST GOOGLE TO PREVENT SPOLIATION OF EVIDENCE BY GOOGLE - 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 PERFECT 10, INC. 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 REPLY DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF PERFECT 10'S MOTION FOR THE IMPOSITION OF A PRESERVATION ORDER AGAINST GOOGLE TO PREVENT SPOLIATION OF EVIDENCE BY GOOGLE Exhibit 8 Filed Separately Under Seal Pursuant To Protective Order Date: January 15, 2010 Time: 10 A.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

GOOGLE INC., a corporation, Defendants.

AND CONSOLIDATED CASE.

Reply Declaration of Jeffrey N. Mausner In Support Perfect 10's Motion for the Imposition Of A Preservation Order Against Google To Prevent Spoliation Of Evidence By Google

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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. Kris Brewer submitted a declaration to support Google's Opposition to a Preservation Order. (See Declaration Of Kris Brewer In Support Of Google Inc.'s Opposition To Perfect 10, Inc.'s Motion For A Document Preservation Order To Prevent Spoliation Of Evidence By Google.) In her declaration, Ms. Brewer states: "I am an Associate Discovery Counsel at Google Inc." (Paragraph 1, line 2.) Ms. Brewer does not state her hire date or make any reference to how long she has been employed by Google. 3. The law firm of Dewey & LeBoeuf LLP has a website and it showed, as of January 2, 2010, that Kris H. Brewer was listed as an Associate at that firm. The website states that she attended American University, Washington College of Law, graduating in 2006. The website states that she graduated from Wellesley College in 2003. (On January 2, 2010, I personally downloaded the webpage that showed Ms. Brewer's Associate status at Dewey & LeBoeuf LLP, as well as her credentials. A true and correct copy of that webpage is attached hereto as Exhibit 1.) 4. On January 2, 2010, I used the State Bar of California's Attorney Search function to search for information about Ms. Brewer. The State Bar of California Website's Attorney Search function showed no results for the name "Kris Brewer." (On January 2, 2010, I personally downloaded a copy of the webpage that showed no results for the name "Kris Brewer." A true and correct copy of that webpage is attached hereto as Exhibit 2.) The State Bar of California
-1Reply Declaration of Jeffrey N. Mausner In Support of Perfect 10's Motion for the Imposition Of A Preservation Order Against Google To Prevent Spoliation Of Evidence By Google

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Website's Attorney Search function did show results for the name "Kris Hue Chau Man." (On January 2, 2010, I personally downloaded a copy of the webpage that showed the results for the name Kris Hue Chau Man. A true and correct copy of that webpage is attached hereto as Exhibit 3.) Kris Hue Chau Man apparently is Ms. Brewer's maiden name. The credentials listed for Kris Hue Chau Man on the State Bar of California website match the credentials for Kris Brewer on the Dewey & LeBoeuf website. The State Bar website, as of January 2, 2010, listed Kris Hue Chau Man as being employed by Dewey & LeBoeuf. (See also Exhibit 4, which is a print-out from BlockShopper.com, which shows the name Kris Hue Chau Man Brewer. This print-out was obtained by Melanie Poblete.) 5. 6. Attached hereto as Exhibit 5 are true and correct copies of emails Attached hereto as Exhibit 6 is a true and correct copy of an between me and Google's counsel, Rachael Herrick Kassabian. email I sent to Google's attorney Michael Zeller, and cc'd to other Google attorneys including Rachel Kassabian, on December 22, 2009. In this email, I asked: "Please let me know if you would like to discuss Perfect 10 and Google entering into a mutual preservation order. If so, let me know times that you are available to discuss it over the next few days." On January 3, 2010, I received a response to my email from Rachael Kassabian, in which she refused to consider a mutual preservation order. That email is also attached as Exhibit 6. My response to Ms. Kassabian, dated January 4, 2010, in which I again offered to discuss a mutual preservation order, is also attached as Exhibit 6. 7. Attached hereto as Exhibit 7 is a true and correct copy of a letter from Brad Love to me, dated December 23, 2009, producing Google's 2007 Records Retention Policy. Filed separately under seal as Exhibit 8 is the attached Records Retention Policy, with portions highlighted. 8. Attached hereto as Exhibit 9 is a true and correct copy of the
-2Reply Declaration of Jeffrey N. Mausner In Support of Perfect 10's Motion for the Imposition Of A Preservation Order Against Google To Prevent Spoliation Of Evidence By Google

Declaration of Alexander Macgillivray In Support Of Google's Opposition To

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Plaintiff's Motion For Preliminary Injunction, without exhibits, and with portions highlighted, which was filed on September 26, 2005, Docket No. 42. In this declaration, Mr. Macgillivray, Google's Senior Product and Intellectual Property Counsel, states: 15. Google receives thousands of inquiries daily concerning search results, including notices about search results that link to allegedly improper content. Those notices concern various issues, including claims that third-party Web sites have infringed the senders' copyright, trademark or other rights. Google has several departments involved in handling notices of alleged infringement. 9. Attached hereto as Exhibit 10 is a true and correct copy of the cover page and pages 17 and 19 of Google Inc.'s Objections to the Magistrate Judge's Order of February 22, 2008, Granting in Part Plaintiff Perfect 10, Inc.'s Motion to Compel, Docket No. 258, in which Google stated that it "receive[s] many thousands of DMCA notices from many thousands of alleged copyright owners." 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 January 5, 2010, at Los Angeles County, California. __________________________________ Jeffrey N. Mausner

-3Reply Declaration of Jeffrey N. Mausner In Support of Perfect 10's Motion for the Imposition Of A Preservation Order Against Google To Prevent Spoliation Of Evidence By Google

Exhibit 1

Dewey & LeBoeuf LLP - Brewer, Kris H.

http://deweyleboeuf.staged.hubbardone.com/kris_brewer/

Kris H. Brewer
Associate
Litigation International Litigation W hite Collar Criminal Defense and Investigations San Francisco [phone] Silic on Valley [phone] [e-mail]

Education Americ an University, Washington College of Law, 2006, J.D., cum laude; Rec ipient, Reed-Salisbury Scholarship; Senior Staff Member, Administrative Law Review W ellesley College, 2003, B.A. Bar Admissions California Languages Spoken Cantonese

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Exhibit 2

State Bar of CA :: Attorney Search

http://members.calbar.ca.gov/search/member_search.aspx?ms=Kris+Brewer

Saturday, January 2, 2010

St at e Bar Home

Hom e > Attorney Search

Attorne y Name or Bar Number Advanced Search » Include similarly sounding names

Your search for Kris Brewer returned no results.
Would you like to search for names that sound like Kris Brewer?
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© 2010 The State Bar of California

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Exhibit 3

State Bar of CA :: Kris H. C. Man

http://members.calbar.ca.gov/search/member_detail.aspx?x=246008

Saturday, January 2, 2010

St at e Bar Home

Hom e > Attorney Search > Attorney Profile

Kris Hue Chau Man - #246008
Current Status: Active
T his member is active and may practice law in California. See below for more details.

Profile Information
Bar Number Addre ss 246008 Dewey & LeBoeuf LLP 1950 University Ave Ste 500 East Palo Alto, CA 94303-2225 Phone Number Fax Number e -m ail [phone] [phone] [e-mail]

District County Se ctions

District 3 Santa Clara None

Unde rgraduate School Law School

Wellesley Coll; Wellesley MA American U Washington COL; Washington DC

Status History
Effe ctiv e Date Present 12/5/2006 Explanation of member status Status Change Active Admitted to The State Bar of California

Actions Affecting Eligibility to Practice Law Disciplinary and Related Actions
T his member has no public record of discipline.

Administrativ e Actions
T his member has no public record of administrative actions. Start New Search >
Contact Us Site Map Privacy Policy Notices
© 2010 The State Bar of California

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Exhibit 4

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Exhibit 5

Jeffrey Mausner
From: Sent: To: Subject: Attachments: Jeffrey Mausner [[e-mail]] Thursday, December 10, 2009 11:39 PM [e-mail]; [e-mail]; [e-mail] Joint Stipulation re Preservation Order - Email 2 Mausner Declaration_Joint Stip Re Doc Preservation Order.pdf; Joint Stip Re Doc Preservation Order.doc

Attached is the Joint Stipulation in Word format. It now contains Perfect 10'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 email. Jeff
This e-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. If you are not the intended recipient of this e-mail, any dissemination or copying of this message is strictly prohibited. Anyone who mistakenly receives this e-mail should notify the sender immediately by telephone or return e-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 91367-3640 Telephone: [phone] Facsimile: [phone] e-mail: [e-mail]

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From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Friday, December 11, 2009 10:52 AM To: 'Jeffrey Mausner'; 'Valerie Kincaid' Cc: Thomas Nolan; Brad R. Love; Michael T Zeller Subject: RE: Joint Stipulation re Preservation Order - Email 2

Jeff, We have reviewed P10's portions of the joint stipulation on Google's motion for a document preservation order. Unfortunately, P10 has not just opposed 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, P10 has failed to honor its meetandconfer obligations under Local Rule 371 for any such P10 motion. Nor does P10 have any basis whatsoever to claim 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 stipulation violates the Local Rules governing preparation and filing of joint stipulations (Local Rules 372.1 and 372.2). 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 by 3pm today. Please make sure to include both an unredacted and a redacted version of P10's portion of the corrected joint stipulation and P10's corrected supporting documents (which 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 NonCooperation pursuant to Local Rule 372.4. 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 (as well as the entirety of its corrected supporting declarations) to be filed under seal, and we will redact the entirety of those materials for the public filed version. If Perfect 10 wishes to file 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 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

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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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Jeffrey Mausner
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Friday, December 11, 2009 1:59 PM 'Rachel Herrick Kassabian'; 'Valerie Kincaid' 'Thomas Nolan'; 'Brad R. Love'; 'Michael T Zeller' RE: Joint Stipulation re Preservation Order - Email 2

Rachel, I cannot respond to your email in detail because of the deadline this Monday to file the Reply brief in support of Perfect 10's motion for evidentiary sanctions against Google. I am available after that to respond to your email in more detail and to discuss the issues Google raises. Google has no basis for refusing to follow the procedures in Local Rule 37. Perfect 10 fully cooperated and complied with those procedures in response to Google's delivery of the Joint Stipulation (despite Google's failure to comply with Local Rule 37), and in notifying Google about Perfect 10's own motion. Google is obligated to include Perfect 10's portions of the Joint Stipulation and obtain my signature. Google cannot unilaterally decide to not follow this procedure. Google may inform the Court that it believes that Perfect 10 cannot bring its own motion, but it cannot refuse to follow the procedures and refuse to include Perfect 10's portions of the Joint Stipulation and obtain my signature. This is yet another example of Google's unfair gamesmanship, which is the subject of an order in this case. Further, your timing of this motion, and in particular the threats made in your email, are an obvious attempt to sidetrack me from working on the Reply brief that is due on Monday. I cannot spend any further time on this until after the Reply brief is filed. If Google wants to add a response to the Joint Stipulation, it may do so. But in any case, Google cannot file its portion of the Joint Stipulation without Perfect 10's portions included and my signature. Alternatively, I can discuss this with you after the Reply brief and supporting documents are filed. If Google files its motion without Perfect 10's portions and signature, Perfect 10 will bring this matter to the Court's attention and seek appropriate sanctions. Jeff

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From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Friday, December 11, 2009 2:40 PM To: 'Jeffrey Mausner'; 'Valerie Kincaid' Cc: Thomas Nolan; Brad R. Love; Michael T Zeller Subject: RE: Joint Stipulation re Preservation Order - Email 2

Jeff, It is Perfect 10, not Google, who has ignored the procedures of Local Rule 37 here. Google properly metandconferred on its intended motion for more than three months, and when those discussions failed, sent Perfect 10 its portions of the Joint Stipulation on that motion. Under Local Rule 37, Perfect 10 was obligated to return its portions in opposition to that motion on December 9. We agreed to give P10 an extra day, until December 10. P10 chose to use that extra time drafting its own separate motion and including it in the Joint Stipulation, without even bothering to complete its meetandconfer obligations on that separate motion--or even to let us know that you intended to include a new motion in the Joint Stipulation. Perfect 10's conduct is unprecedented and violates the Local Rules. Regarding the remainder of your allegations and extraneous comments: your accusation of "gamesmanship" is regrettable, as well as false. Perfect 10 has been on notice of these issues for more than three months, and consistently refused to answer any of Google's questions during meet and confer, leaving Google with no choice but to file a motion. It was Perfect 10's choice to ignore Google's meet and confer letters, forcing motion practice. It was also Perfect 10's choice to file a motion with Judge Matz during the pendency of the parties' meet and confer efforts on P10's apparent spoliation of documents. If P10 has time to prepare two motions, it has time to respond to Google's motion. If Perfect 10 wants to file a baseless discovery motion without first meeting and conferring, we can't stop you. But Google is under no obligation to file it for you, via the Joint Stipulation on Google's motion. Nor is Google in a position to edit P10's briefing to excise P10's improperlyadded motion. Perfect 10 may not delay the filing of Google's motion by failing to properly send us its portions of the Joint Stipulation. We remain hopeful that Perfect 10 will reconsider and send us its portions of the Joint Stipulation by 3 p.m. If not, we will proceed with Google's filing, accompanied by a Statement of Noncooperation. Google reserves all rights to seek sanctions under Rule 374 for P10's failure to timely provide Google with its portions of the Joint Stipulation under the local rules. Rachel
Rachel Herrick Kassabian Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 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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Jeffrey Mausner
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Friday, December 11, 2009 2:59 PM 'Rachel Herrick Kassabian'; 'Valerie Kincaid' 'Thomas Nolan'; 'Brad R. Love'; 'Michael T Zeller' RE: Joint Stipulation re Preservation Order - Email 2

I disagree with your statements below, but as you know, I do not have time to respond to them now. I have provided you with Perfect 10's portions. You must include them in your filing. If you want to discuss this further after I file the Reply Brief, I will do so. Otherwise, you must include Perfect 10's portions. Jeff.

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From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Friday, December 11, 2009 3:18 PM To: 'Jeffrey Mausner'; 'Valerie Kincaid' Cc: Thomas Nolan; Brad R. Love; Michael T Zeller Subject: RE: Joint Stipulation re Preservation Order - Email 2

Jeff, P10's reply brief is no excuse. It would have taken you thirty seconds to confirm that Perfect 10 will remove its new motion from its portions of the Joint Stipulation on Google's motion, but you have refused to do so. We will proceed accordingly. Rachel

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From: Jeffrey Mausner [mailto:[e-mail]] Sent: Friday, December 11, 2009 3:47 PM To: Rachel Herrick Kassabian; 'Valerie Kincaid' Cc: Thomas Nolan; Brad R. Love; Michael T Zeller Subject: RE: Joint Stipulation re Preservation Order - Email 2

Rachel, Google cannot dictate what Perfect 10 says in its portions of the Joint Stipulation. Google's refusal to include Perfect 10's portions would be sanctionable. It is unfortunate that a company with unlimited financial resources happily consumes an inordinate amount of Court time, to the detriment of everyone else involved, but will not abide by the rules, unless it is to Google's benefit. Once again, you are required to include Perfect 10's portions. Jeff

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Jeffrey Mausner
From: Sent: To: Cc: Subject: Rachel Herrick Kassabian [[e-mail]] Friday, December 11, 2009 3:58 PM 'Jeffrey Mausner'; 'Valerie Kincaid' Thomas Nolan; Brad R. Love; Michael T Zeller RE: Joint Stipulation re Preservation Order - Email 2

W Jeff, i e are happy to include whatever P10 has to say in opposition to Google's motion , but we are under no obligation to nclude an entirely separate motion by P10, as I have explained below (nor do the Local Rules permit or even contemplate such a thing). The other accusations in your email below are spurious and require no response. Since this a Rppears to be P10's final position, we will consider the matter closed. Regards, achel

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Exhibit 6

Jeffrey Mausner
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Tuesday, December 22, 2009 12:30 PM [e-mail] [e-mail]; [e-mail]; [e-mail]; [e-mail]; Charles K. Verhoeven Preservation Order

Mike: Please let me know if you would like to discuss Perfect 10 and Google entering into a mutual preservation order. If so, let me know times that you are available to discuss it over the next few days. Jeff.
This e-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. If you are not the intended recipient of this e-mail, any dissemination or copying of this message is strictly prohibited. Anyone who mistakenly receives this e-mail should notify the sender immediately by telephone or return e-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 91367-3640 Telephone: [phone] Facsimile: [phone] e-mail: [e-mail]

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Jeffrey Mausner
From: Sent: To: Cc: Subject: Rachel Herrick Kassabian [[e-mail]] Sunday, January 03, 2010 8:58 PM 'Jeffrey Mausner' Thomas Nolan; Brad R. Love; Andrea P Roberts; Michael T Zeller RE: Preservation Order

Jeff, As always, Google is open to discussing anything that might ease the burden on the Court in this case. However, Perfect 10 has made no showing that a mutual preservation order is appropriate in this case. By contrast, Perfect 10's witnesses have confirmed (and in its opposition papers Perfect 10 has not disputed) that Perfect 10 has failed to preserve certain relevant documents. It would greatly ease the burden on the Court if Perfect 10 will stipulate to the relief Google seeks in its document preservation motion, namely that Perfect 10:

(1) immediately take all steps necessary to preserve all documents relevant to this litigation, including modifying Perfect 10's computer settings for all employees and officers to remove any auto-deletion instructions; and (2) submit a declaration describing the scope and extent of its document deletion activities, including the following: · Describe how the settings on Ms. Augustine's Perfect 10 email account were established, by whom, and when; · Describe whether emails on Ms. Augustine's Perfect 10 email account have been deleted, and if so, how many and during what time period; · Identify the location of any "backup" files for the deleted Augustine emails, including on Ms. Augustine's computer(s), on Perfect 10 computers or servers, or at an off-site location maintained by any Perfect 10 service provider or vendor; · Explain whether Perfect 10 gave any document preservation instructions to any Perfect 10 employees, contractors, or other personnel regarding this lawsuit; · Identify whether the email accounts of any Perfect 10 employees, contractors, or other personnel besides Ms. Augustine have ever been set to automatically delete emails (and if so, who, when and after how long).
If Perfect 10 agrees to this relief, and withdraws its motion for a preservation order against Google, Google will withdraw its request for sanctions against Perfect 10 based upon its filing of a baseless document preservation motion against Google. Please advise, thanks.
Rachel Herrick Kassabian | Partner
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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.

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Jeffrey Mausner
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Monday, January 04, 2010 10:55 PM 'Rachel Herrick Kassabian' 'Thomas Nolan'; 'Brad R. Love'; 'Andrea P Roberts'; 'Michael T Zeller' RE: Preservation Order

Rachel: Perfect 10 asked Google to consider entering into a mutual preservation order, and Google responded by insisting that Perfect 10 agree to the unilateral preservation order Google submitted to the Court. This, of course, is a non-starter. Please let us know if Google is interested in a mutual order and, if it is, we should talk and try to work-out parameters. This is a far better alternative for Google then waiting to see what the Court decides to impose on it. A preservation order is only appropriate against Google -- given its non-compliance with Court orders, failure to produce documents, and written document destruction policies. Google's purported basis for an order against Perfect 10 is meritless for all the reasons set forth in the Joint Stipulation that Perfect 10 filed. Nonetheless, Perfect 10 will agree to a fully mutual order to relieve the burden on the Court and because Google's conduct shows that an order against it is a necessity. Please let me know if you want to discuss a mutual order. Jeff.

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Exhibit 7

WHEN I1IMMINIU81 Anal lawyers I son froncisoe
50 California Street, zznd Floor, San Francisco, California 94111 TEL [phone]oo FAX [phone]

December 23, 2009

VIA )C MAIL AND U.S. MAIL +

Mr. Jeffrey Mausner Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367 E-mail: [e-mail]

Re:

Perfect 10 v. Google: Document Production

Dear Jeff. Enclosed please find Google's document production control numbered GGL 053981-053983. GGL 053981-053983 is marked "Confidential" in accordance with the terms of the Protective Order, and is so designated on the face of each page of the document. Please treat the document accordingly.

Sincerely,

Brad Love

01980 .5I 32013255462.1

quinn emanuei urquharl eiiuer a hedges, lip
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